An Impact Assessment (IA) is a tool used to assess the effects of a potential major projects being carried out on federal lands, or projects being undertaken outside of Canada.

This assessment considers the impacts of the project on people and the environment during the early development stages of major project planning. These impacts are then weighed and can result in the modification of the project, and in extreme circumstances, the termination of a project and/or some of its proposed elements.

Impacts assessed include economic, health, social, and environmental effects, and most importantly the impact on Indigenous groups and their rights

The Impact Assessment Act was created to foster sustainability and to protect the environment, the health, social, and economic conditions from adverse effects of a proposed project.

The assessment process is to consider both the positive and adverse effects of a project. The purpose of the IAA is also to promote the cooperation and coordinated action between the federal and provincial governments and between the federal government and Indigenous governing bodies in the area.

The IAA process is to promote communication and cooperation with Indigenous peoples and to ensure the rights of Indigenous peoples recognized and affirmed by s.35 of the Constitution Act, 1982, in the course of the impact assessment as well as in the decision-making process. Impact assessments under this act are to provide for meaningful public participation and inclusion of not just scientific information, but also Indigenous and local community knowledge.

The full legislation can be found at: https://laws.justice.gc.ca/eng/acts/I-2.75/index.html

The term “designated projects” is used within the legislation in reference to the types of projects that are subject to an Impact Assessment.

These projects are outlined in the Physical Activities Regulations and include undertakings in the mining, nuclear energy, oil, gas, hazardous waste, marine, parks, and transport industries.

It is also important to note that the Minister of Environment has authority under the act to designate activities that are not already included in the act if they are of the opinion that the project may lead to negative impacts. This power can be exercised at the discretion of the Minister, or by request/order.

• See section 9(1) of the Act for the full legal description of this power here.

You can access the designated projects list at: https://gazette.gc.ca/rp-pr/p2/2019/2019-08-21/html/sor-dors285-eng.html

In order to determine if a provincial or federal (IAA) assessment is to be done, the main subject of the proposed project is considered and whichever jurisdiction it is in is done.

Under the IAA, the impact assessment of a designated project is done through either the Impact Assessment Agency of Canada or a review panel.

Impact assessment by review panel is done when the Minister believes it is in the public’s best interest to do so for a number of reasons. For instance, the extent to which the effects from the project will be negative, public concerns related to those effects, opportunities for cooperation with any jurisdiction that has powers, duties, or functions relating to the assessment of the environmental effects of any part of the project, and whether the negative impacts from the proposed project may affect the rights of Indigenous peoples of Canada recognized and affirmed by s.35.

Otherwise, if there is no referral to a review panel, the assessment goes to the impact assessment Agency.

Parties involved throughout the Impact Assessment and the decision-making process include:

• The proponent: aka the party undertaking the project

• The Impact Agency of Canada (IA Agency)

• The Minister of Environment

• The Governor in Council

• The Review Panel

• Federal Authorities

• The Public

• Indigenous Groups

• Other jurisdictions

There are five phases to the IA process, which include planning, impact statement, impact assessment, decision making, and post decision.

The planning stage includes making information about the project available to the surrounding Indigenous communities and more broadly local communities who would possibly be affected by the project.

The impact statement stage is where the proponent is provided with clear requirements for information and studies for an Impact Statement which is to be informed by science, Indigenous knowledge, and local ecological knowledge.

The third stage involves the impact assessment report and Crown consultation outcomes inform the ultimate decision maker (Minister or Governor in Council) on whether the project’s adverse impacts are in the public interest.

If it is found that the project is in the public’s interest then the Minister will establish conditions for the project to have to meet in order to move forward in the process. The decision statement sets out a rationale for the decision in order to ensure transparency and accountability.

The post decision stage is where the Agency verifies that the project is in compliance with the decision statement and the conditions. Key documentation is made available at this stage, as well as there being opportunities for Indigenous community participation in follow up and monitoring programs at this stage.

Each phase of the impact assessment process has timelines in order to keep the process on track and predictable.

The Planning Phase is 180 days.

The Impact Statement Phase is determined by the party proposing the project, but can be up to three years. The Impact Assessment Phase can be up to 300 days for Agency- led assessments and integrated review panels such lifecycle regulators (e.g. the Canada Nuclear Safety Commission). Whereas the review panel impact assessments can take as long as 600 days. The decision- making Phase timeline depends on whether the Minister is deciding and or if Cabinet is deciding. If the decision maker is the Minister it is 30 days and if the decision maker is he Cabinet then they have 90 days.

Yes! you can search the Canadian Impact Assessment Registry at: https://www.ceaa-acee.gc.ca/050/evaluations/Index?culture=en-CA

Here you may search by keywords, browse a list of active assessments or search for projects directly from a map!

Be sure to check out the “get involved” link on the registry to see a list of projects within each province that you may be interested in participating in! (available at https://www.ceaa-acee.gc.ca/050/evaluations/participation)

The new Impact Assessment legislation replaced the Canadian Environmental Assessment Act (CEAA) in 2019 and included some key differences:

• The CEAA had no early planning and engagement phase, which is now featured in the IAA. This serves to establish discussions with Indigenous groups, the public, stakeholders and the provinces earlier on in the process so that they can express their concerns and identify any issues before major developments in a project.

• The CEAA did not consistently consider indigenous knowledge within its decisions. However, in the IAA decisions are guided by science, evidence AND indigenous knowledge. The IAA has mandatory consideration and protection of indigenous knowledge alongside local ecological knowledge in the actual assessment.

  • The IAA has also set out to include plain language summaries of the facts that support assessments within the process. This ensures better access to the information by the public and other affected parties.

• The CEAA assessments mainly focused on minimizing adverse environmental effects. The IAA broadens the scope of impacts assessed to include positive and negative environmental, economic, health impacts which also include an analysis on the intersection of sex and gender on these factors. Additionally, the IAA includes the assessment of impacts on Indigenous people and their rights.

• Aside from assessing the impacts on Indigenous groups, the IAA includes Indigenous participation at EVERY STAGE – this ensures early and consistent contact throughout the assessment, and forces recognition of Indigenous rights and interests at the very beginning of any project which falls under the act. This feature was not consistently implemented in the CEAA.

• The CEAA featured a standing test which only allowed those who were directly impacted to participate in a project assessment. The IAA eliminated this aspect with the aim to address barriers to public participation. Within the IAA there are multiple ways in which members of the public can get involved within the process and features a “planning phase” which allows public input early on in the development of a project.

There are to be opportunities for Indigenous participation and collaboration at each stage of the impact assessment. Participation and integration of Indigenous peoples of Canada throughout the impact assessment process stems from the Government of Canada’s commitment to reconciliation. As well, the participation of Indigenous peoples in Canada in the assessment process goes beyond general principles and requirements of public participation because of the unique Constitutional relationship with the Crown.

Tools that support Indigenous participation in Impact assessment include Indigenous Engagement and Partnership Plans, taking a flexible approach, consultation protocols and frameworks for collaboration, and Co-operation Agreements. Indigenous Engagement and Partnership Plans are to be developed in the early Planning Phase of the process and is an agreed upon plan for how the Indigenous community will collaborate throughout the assessment process. Taking a flexible approach to participation means finding a way to participate in a manner that reflects the needs of the communities and respects Indigenous cultures, traditions, customary laws, and protocols. In some circumstances, consultation protocols and frameworks for collaboration would be developed for the impact assessment context. Whereas, Co-operation Agreements are negotiated in order to enable the Indigenous Governing Bodies to exercise power, duties, or functions under the IAA

Here is a list with links to the full text sections of the Impact Assessment Act that relate to Indigenous participation for easy access:

• Section 6(2): Canada’s commitment to respect the rights of Indigenous Peoples

• Section 12: the requirement to offer to consult with Indigenous groups that may be affected by the project

• Section 14(1): the requirement of the IAAC to give the party undertaking the project a summary of the potential issues with respect to Indigenous groups

• Section 22: this section outlines the factors which are considered in the impact assessment – note subsections c, g, l, r, and s for factors which relate to impacts on Indigenous groups.

• Section 36(2)(d): this section outlines the onus on the Minister to consider impacts on Indigenous rights when referring an assessment to a review panel

• Section 63(d): this section outlined further consideration of the impacts on Indigenous rights in decisions made by the Minister and Governor in Council.

• Section 155(b): this section notes the IA Agency’s objective of coordinating with Indigenous groups that may be affected by a project.

At the decision-making stage of the impact assessment the Minister must consider the Consultation Summary or Crown Consultation and Accommodation Report as well as any views submitted by the Indigenous communities on the adequacy of consultation. Then the decision maker will inform the Minister of whether the duty to consult has been met and whether consent was achieved throughout the impact assessment process. However, what specifically the duty to consult looks like is different in different situations.

Some key court decisions that have helped to clarify the duty consult include, Tsilhqot’in Nation v British Columbia and Clyde River (Hamlet) v Petroleum Geo-Services Inc., where the courts emphasized the nature of the duty to consult in the environmental context. In Tsilhqot’in, the Court found that the honour of the Crown required the duty to consult and accommodate even potential Aboriginal Title claims. The Court in Clyde River asserted that regulatory bodies can discharge a duty to consult, but ultimately the responsibility relies with the Crown to make sure the duty was discharged properly.

Moreover, cases such as Haida Nation, Taku River, and Mikisew Cree Nation further clarified the duty. In these cases, the courts emphasized the decision makers need to take into account the nature of the right in order to determine what the nature of the duty to consult is in a situation specific basis. For instance, in Haida Nation, the Court explains that the purpose of consultation is to work towards reconciliation of Aboriginal and Crown interests as demanded by s.35 of the Constitution. There must be an assertion of Aboriginal title in order to necessitate a duty to consult. The duty to consult is a spectrum and varies depending on the strength of the prima facie claim of title. Consultation is essential to ensuring that Aboriginal concerns are addressed, and where appropriate, they are to be accommodated. However, the Court does not go as far as imposing a duty to agree.

See the helpful resources section for links to the cases mentioned!

Following the duty to consult with Indigenous groups, comes the possibility of accommodating the specific concerns of the impacted Indigenous group affected by the project. Accommodation may involve changing a projects scope, location or timing, among many other things when Indigenous rights are being affected. These changes are implemented with a view to minimize the impact on the Indigenous group and their infringed rights.

Similar to the duty to consult, the duty to accommodate lies on a spectrum: meaning that the degree of the accommodation will vary on a case-by-case basis. As noted in the previous section there is no duty or obligation to agree to accommodations proposed by Indigenous groups. Therefore, the Crown just has to act in good faith in its intentions to addressing concerns that are raised.

The Indigenous Capacity Support Program is administered by the IA Agency to make funds available in order to support Indigenous communities and organizations to help develop skills to better participate in the impact assessment process. The purpose of this is to enhance the engagement and leadership of Indigenous peoples in consultations on project assessments. The process of the program begins with an Indigenous organization expressing interest in acting as a program delivery partner to provide communities at a regional level. Capacity building initiatives are given priority for funding. For instance, those projects that develop Indigenous governance structures to allow for more effective participation in the impact assessment, build awareness and expertise within communities to support the new components, and development and sharing of tools such as kits, studies, guidelines, etc.

For more information please visit https://www.canada.ca/en/impact-assessment-agency/services/public-participation/iaac-indigenous-capacity-support-program.html

You may contact the Impact Assessment Agency Headquarters at:

• 1-866-582-1884 (toll free)

In Nova Scotia you can contact their Atlantic office at:

• 902-426-0564

• iaac.atlanticregion-regiondelatlantique.aeic@canada.ca

For other provinces please click here to find your local office’s contact information.

https://www.canada.ca/en/impact-assessment-agency/corporate/contact.html

Training sessions are offered through the Impact Assessment Agency. Courses aim to inform the public about the IA Act.Their training program has three levels ranging from beginner/general level, advanced and technical.

See the Training Opportunities here! Sessions are offered online and in person (when available).

Please note that there is also the possibility of being added to a waitlist for any courses which are full. To be added to the waitlist contact iaac.training-formation.aeic@canada.ca with your information and desired course date.

The Impact Assessment Agency of Canada: you can find lots of resources and information on the IA Agency and the Act itself!

https://www.canada.ca/en/impact-assessment-agency.html

For news related to Impact Assessments:

https://www.canada.ca/en/impact-assessment-agency/news/media-room.html

For legal aid in Nova Scotia:

https://www.nslegalaid.ca/

Resources for Indigenous communities:

https://www.canada.ca/en/indigenous-services-canada.html

https://novascotia.ca/abor/