The Path Forward

AuthorMeinha rd Doelle an d A John Sinclair
 24
The Path Forward
Meinhard Doelle and A John Sinclair
In this nal chapter, we focus on law reform and key changes in the
implementation of the Impact Assessment Act (IAA)1 that are needed to
complete the transition of the federal assessment process to an eective
governance tool for sustainability. In making these recommendations,
we have reected on what the contributors to Part II of this book have
explored and on our own assessment in the previous chapter of how
the IAA stacks up against the fourteen components of next-generation
impact assessment. We have organized our recommendations accord-
ing to the main phases in the federal assessment process rst identied
in Chapter 3, starting with triggering and then considering planning
and scoping, process options and design, decision making, follow-up,
strategic and regional assessments, and the assessment of projects on
federal lands and outside Canada.
We use the terms law reform and legislative reform to refer to changes
that could be reected in the statute or in regulations. When we refer to
the IAA, we refer to the statute, not the regulations. Where we think it is
important, we specify whether the reform should happen in the statute
or regulations, but our focus is generally on ensuring that the reforms
are enshrined in law. We also at times refer to guidance and policy for
1 SC 2019, c 28, s 1.
     528
matters that require more exibility to adjust as experience warrants
or are too detailed to be enshrined in regulations. Finally, we cannot
hope to fully reect the rich analysis in Part II; rather, our aim here is to
highlight improvements needed in the implementation of the IAA, key
regulations that are missing, and opportunities to further strengthen
the Act through law reform when the opportunity arises.
As discussed in Chapter 7, the Canadian Environmental Assessment Act,
2012 (CEAA 2012)2 represented a signicant departure from the triggering
process under the Canadian Environmental Assessment Act (CEAA 1995),3
which the IAA does not reverse. Leaving aside the debate about which
basic approach as captured in these Acts is better, the IAA’s approach
to triggering the project-level assessment process is inadequate in a
number of ways. The current list of projects in the designated project
regulations does not capture all projects that warrant a federal assess-
ment. There are no clear, detailed criteria to justify the current list or
to guide decisions respecting whether a given project should be subject
to a federal assessment. Once these criteria are established, preferably
as part of the designated projects regulations, they should guide the
expansion of the current project list4 and its regular updating. The same
criteria should also be used to guide ministerial determinations as to
whether to designate proposed projects that are not on the project list
under section 9 of the IAA.
We suggest that the overall basis for developing the criteria should
be whether a proposed project is “likely to adversely impact matters of
federal interest that are consequential for present and/or future gener-
ations.”5 Areas of federal interest are those listed in the IAA, subject to
considering additions, including Canada’s key international obligations
2 SC 2012, c 19, s 52.
3 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.
4 Physical Activities Regulations, SOR/2019-285.
5 The wording is adapted from similar wording proposed by the Expert Panel; see
Expert Panel for the Review of Environmental Assessment Processes, Building Common
Ground: A New Vision for Impact Assessment in Canada (Ottawa: Canadian Environ-
mental Assessment Agency, 2017) s 3.2.1, online (pdf): Government of Canada

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