Putting Multi-jurisdictional Impact Assessment into Action Under the Impact Assessment Act

AuthorPatricia Fitzpa trick, Arlene Kwasniak, and A John Sinclair
 8
Putting Multi-jurisdictional Impact
Assessment into Action Under the Impact
Assessment Act
Patricia Fitzpatrick, Arlene Kwasniak, and A John Sinclair
Multi-jurisdictional impact assessment (MJIA) occurs where more than
one jurisdiction requires an assessment of impacts1 with respect to the
same project or initiative. The challenge of how best to implement MJIA
has vexed the Canadian federation for decades. The decision on who con-
ducts an assessment can have profound implications for what impacts
are assessed and how they are assessed, potentially aecting the propon-
ent, the public, aected communities, the environment, and sustaina-
bility.2 For over thirty years, governments, academics, practitioners, and
others have attempted to improve MJIA in Canada. Avoiding negative
implications, such as jurisdictional bullying or reducing assessments
to the lowest common denominator, has been one part of the approach.
The other has been to preserve the positives, such as respecting the
1 Impact assessment throughout Canada is commonly referred to as “environmental
assessment” or “EA.” However, since the federal Impact Assessment Act (SC 2019, c 28,
s 1) [IAA] came into force in August 2019 (SI/2019-86), federal impact assessment is
characteristically referred to as “impact assessment” or “IA,” to recognize the range of
impacts assessed under the Act in addition to environmental impacts.
2 See Patricia Fitzpatrick & A John Sinclair, “Multi-jurisdictional Environmental Assess-
ment in Canada” in Kevin S Hanna, ed, Environmental Impact Assessment: Process
and Practice, 3d ed (Toronto: Oxford University Press, 2014) 182 [Fitzpatrick & Sinclair,
“Multi-jurisdictional”] and A John Sinclair, Gary Schneider & Lisa Mitchell, “Environ-
mental Impact Assessment Process Substitution: Experience of Public Participants”
(2012) 30:2 Impact Assessment and Project Appraisal 85.
     166
responsibilities of the assessing jurisdictions, meeting their information
needs so they can make informed, independent decisions, and facilitat-
ing public and Indigenous involvement. Although it is possible for each
assessing jurisdiction to carry out its own assessment, critiques of this
practice hold that this approach can result in ineciency, delay, duplica-
tion, inconsistency, and excessive cost for the proponent and stress and
confusion for the proponent and participants.3 Accordingly, attempts
to deal with MJIA situations have concentrated on a “one project, one
assessment” approach (also known as a “one-window” approach).
This chapter continues in that direction, focusing on methods to
implement MJIA that seek to achieve a single, comprehensive assess-
ment for each project. It reviews, explains, and assesses traditional
approaches to address MJIA in order to place and evaluate the meth-
ods set out in the Impact Assessment Act (IAA).4 Section B outlines the
constitutional context in which MJIA occurs. Section C focuses on trad-
itional methods to address MJIA situations. Section D delves into the
development of the IAA in light of the traditional methods available to
lawmakers and of the information rendered in the law reform process.
Section E sets out how the IAA deals with MJIA. Section F analyzes and
evaluates the IAA approaches and makes recommendations to improve
them and to facilitate better practices as the IAA comes into use.
In Canada, the federal government and all provinces and territories
have impact assessment legislation of some kind. Additionally, most
Indigenous governing bodies also have impact assessment processes.5
To understand why there is MJIA in Canada, one needs to consider how
3 See, for example, Fitzpatrick & Sinclair, “Multi-jurisdictional,” above note 2, and the
Expert Panel for the Review of Environmental Assessment Processes, Building Common
Ground: A New Vision for Impact Assessment in Canada (Ottawa: Canadian Environmental
Assessment Agency, 2017), online (pdf): Government of Canada www.canada.ca/content/
ground/building-common-ground.pdf [Building Common Ground], especially s 2.2.1.
4 IAA, above note 1.
5 This includes legislative processes involving Indigenous peoples, such as land claims
agreements, co-management provisions, etc., and important work by Indigenous
governments and organizations that codify and revitalize Indigenous legal traditions
relating to the environment.

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