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

• Author: Patricia Fitzpa trick, Arlene Kwasniak, and A John Sinclair
• Pages: 165-193

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Putting Multi-jurisdictional Impact

Assessment into Action Under the Impact

Assessment Act

Patricia Fitzpatrick, Arlene Kwasniak, and A John Sinclair

A. INTRODUCTION

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.

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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.

B. MULTIJURISDICTIONAL IMPACT ASSESSMENT: THE

CONSTITUTIONAL CONTEXT

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/

dam/themes/environment/conservation/environmental-reviews/building-common-

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.