Policy Framework for Regional Assessment under the Impact Assessment Act

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• DRAFT - Policy Framework for Regional Assessment under the Impact Assessment Act

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  1. Purpose

  This policy framework supports the planning and conduct of regional assessments under the Impact Assessment Act (IAA). It provides key elements, principles and a general process for conducting these assessments. It is intended to assist those involved in regional assessments, including committees or the Impact Assessment Agency of Canada (Agency) that are responsible for conducting regional assessments, federal departments and agencies, Indigenous Peoples, stakeholders, other jurisdictions and the public. The policy framework will be updated as needed.

  This document aligns with the Government of Canada’s approach to impact assessment, and with other Agency policies and guidance supporting the implementation of the IAA. This document is provided as policy guidance on the implementation of the relevant statutory provisions; to the extent of any conflict, the IAA shall prevail.

  2. Context

  Sections 92-94 and 96-103 of the IAA provide the legal authorities and requirements for regional assessments. As per sections 92 and 93 of the IAA, the Minister of Environment and Climate Change’s (Minister) authority for undertaking regional assessments depends on whether the assessment would be conducted entirely on federal lands or not, as described below:

  • Where a regional assessment occurs entirely on federal lands, the Minister may either establish a committee or authorize the Agency to conduct a regional assessment.
  • For a regional assessment in part on federal lands or outside of federal lands, the Minister may enter into an agreement or arrangement with other jurisdictions, as defined in paragraphs (a) to (g) of section 2 of the IAA, to jointly establish a committee to conduct a regional assessment, or the Minister may authorize the Agency to do so.
  • For a regional assessment where a foreign state or international organization is involved, the Minister and the Minister of Foreign Affairs may enter into an agreement or arrangement to jointly establish a committee to conduct the assessment.

  The IAA also sets out legal requirements for conducting a regional assessment, including the following:

  • The Minister must establish the terms of reference for a regional assessment;
  • The Agency or committee conducting an assessment must take into account any scientific information and Indigenous knowledge that is provided, including the knowledge provided by Indigenous women;
  • Opportunities must be provided for meaningful public participation, and information used in regional assessments must be made available to the public;
  • Federal authorities in possession of specialist or expert information or knowledge related to the physical activities considered in a regional assessment must provide it upon request;
  • The Agency or committee conducting an assessment must provide a report to the Minister on completion of the assessment. It must specify how the Agency or committee took into account and used any Indigenous knowledge provided related to the assessment;
  • When the Agency conducts a regional assessment, it has obligations under the IAA to offer to consult and cooperate with other jurisdictions (as defined in paragraphs (a) to (g) of section 2 of the IAA) that have powers, duties or functions in relation to the physical activities that are the basis for the regional assessment; and
  • The Minister must respond, with reasons, to any request that a regional assessment be conducted. The time limit for response is 90 days, in accordance with the Information and Management of Time Limits Regulations.

  The IAA requires that regional assessments be taken into account when the Agency decides whether an impact assessment is required (paragraph 16(2)(e)), and as a factor in impact assessments (paragraph 22(1)(p)). In addition, the Minister may consider any relevant regional assessment when deciding whether to designate a physical activity under subsection 9(2). This policy framework does not provide a full list of legal authorities and requirements for regional assessment. Consult the Impact Assessment Act for more information.

  Information on completed and ongoing regional assessments can be found on the Canadian Impact Assessment Registry (Registry), including the status of the assessment and the public opportunities to participate in the process.

  3. Regional assessments under the Impact Assessment Act

  Regional assessments allow the Government of Canada, together with other jurisdictions, to go beyond the scope of project-specific impact assessments to understand the regional context where development occurs (or may occur), and to consider the management of effects from a regional perspective.

  Regional assessments under the IAA analyze the positive and adverse effects of multiple existing and future physical activities in a specific geographic region¹. Effects considered may include environmental, health, social and economic effects, including cumulative effects and impacts on Indigenous Peoples and their rights. For the purposes of regional assessments under the IAA, physical activities can include current and future designated projects, as well as other development in the region.

  Regional assessment is a flexible tool adaptable to a region’s specific characteristics and circumstances. As a result, the goals and outcomes of individual regional assessments may vary. For example, an assessment may focus on development in one industry sector or in multiple sectors within a geographic region. It may examine a broad range of environmental, health, social and economic effects, or a more limited set of effects of interest.

  The effects considered in regional assessments can include ongoing and future effects from existing physical activities, and effects anticipated from future physical activities. Effects from past activities that persist at the time of the regional assessment may also be considered.

  4. Objectives and outcomes of regional assessment

  The main objective of regional assessments under the IAA is to improve the effectiveness and efficiency of future federal impact assessment processes and decisions. To achieve this objective, regional assessments may lead to different outcomes, as described further below. In general, these assessments identify and describe existing or future development in a defined region and consider the effects that have occurred or may occur as a result of development. The effects considered may include environmental, health, social and economic conditions.

  Regional assessments can be used to gather existing and available scientific, technical, cultural and Indigenous information and knowledge. They can identify key data and information gaps and ways to address them. This information and data can be used as baseline information for subsequent project-level impact assessments and for other uses outside of impact assessment, as applicable.

  Regional assessments may identify and recommend mitigation measures applicable to future projects, including measures to address cumulative effects and impacts on Indigenous Peoples and their rights. Mitigation measures identified through a regional assessment inform mitigation requirements at the project level for future impact assessments. However, results or findings from regional assessments do not apply retroactively to completed assessments.

  Beyond mitigation measures, regional assessments may also consider other approaches for addressing regional-scale and non-project specific effects, such as those implemented through policy, plan, program, regulatory or other initiatives by governments or other relevant parties.

  Exclusions

  The IAA provides the Minister with the authority to make a regulation to exclude certain projects from federal impact assessment requirements in regions where a regional assessment has been completed under the IAA in relation to that type of project. The regulation would establish the conditions that must be met and the information that must be provided to the Agency in order for projects to be excluded from the impact assessment process.

  Such an exclusion can only be applied to a select few project types. The Physical Activities Regulations identify offshore exploratory wells and offshore wind power generating projects as the only project types the Minister is authorized to exclude by way of such a regulation. For example, on June 4, 2020, the Ministerial Regulations Respecting Excluded Physical Activities came into force, excluding offshore oil and gas exploratory drilling projects from impact assessment requirements when they are proposed in the geographical area studied by the Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador and when the project is in conformity with the conditions for exclusion set out in the regulations.

  Regional assessments supporting other processes

  Beyond informing and influencing future project impact assessment processes and decisions, regional assessments can support or contribute to separate regulatory and planning processes applicable to the region. For example, a regional assessment could inform or influence future development scenarios in the assessed region and contribute to determining alternatives for managing effects. The use of regional assessment in this manner would depend on the interest of relevant jurisdictions in carrying out such processes and applying the findings of the regional assessment accordingly.

  Regional assessments could also help identify specific sensitive areas (e.g. environmental or cultural) that may require special conditions for development, including additional protection or conservation measures. Information or results from regional assessments could, therefore, help inform potential conservation and sustainable development objectives, and recovery or resource management strategies for a region.

  5. Regional assessment process

  The following list presents typical phases of a regional assessment process under the IAA, and some elements are described in greater detail further below. Specific steps and the details of each phase will be determined on a case-by-case basis.

  1. Minister Decides to Conduct a Regional Assessment
     • Decision may result from a request from the public, a recommendation by the Agency, or when the Minister is otherwise of the view that a regional assessment is appropriate.
     • Decision is posted on the Registry.
  2. Planning and Engagement
     • The Agency seeks input to help plan and design the regional assessment, including its goal, objectives, outcomes and processes. Input obtained during this phase helps identify opportunities and approaches for participation and engagement.
  3. Draft Terms of Reference Issued for Public Comment
     • The Agency posts the proposed draft terms of reference on the Registry for public comment. This may also include a draft agreement or arrangement with other jurisdictions.
  4. Minister Issues Final Terms of Reference
     • The Agency posts the final terms of reference, as established by the Minister, on the Registry.
     • The Minister establishes a Committee or instructs the Agency to conduct the regional assessment.
  5. Conduct of the Regional Assessment
     • The specific activities and timeframe for a regional assessment are determined on a case-by-case basis.
     • The regional assessment is conducted based on the terms of reference and guided by this policy framework and the IAA, including providing opportunities for public participation, as per section 99 of the IAA.
  6. Draft Regional Assessment Report
     • Draft regional assessment report is available through the Registry for public comment.
  7. Final Regional Assessment Report Submitted to the Minister
     • The final regional assessment report is submitted to the Minister and posted on the Registry.
     • On a case-by-case basis, the Minister may respond to the report and provide direction on actions related to the outcomes of the regional assessment, such as follow-up activities.

  Considerations for selecting regional assessments

  The Minister can decide to conduct a regional assessment under the IAA based on a request from the public or a recommendation by the Agency, or when the Minister is of the view that it is otherwise appropriate to do so.

  The Agency supports the Minister with advice as to whether to undertake a regional assessment. The Agency’s advice to the Minister on whether to conduct a regional assessment takes the following principal considerations into account:

  • whether the assessment has the potential to improve the effectiveness and efficiency of future federal impact assessment processes and decisions. This includes the expected number, type and scale of future designated projects in the region and the potential to help understand and address effects within federal jurisdiction;
  • whether there are overarching effects that are likely to result from multiple projects or activities in a region, and which may be difficult to address through project-level impact assessments;
  • whether the assessment could help inform impact assessments of projects in emerging sectors for which there is limited impact-assessment experience;
  • whether existing or planned initiatives could adequately achieve the same objectives as a regional assessment; and
  • the potential for effects of future development on Indigenous Peoples and their rights, including cumulative effects.

  Depending on the region, additional considerations may include, for example:

  • whether there are opportunities for collaboration or cooperation with other jurisdictions in the region;
  • the level of public or Indigenous interest related to development and its effects (including cumulative effects) in the region; and
  • whether there is an opportunity to use the regional assessment to exclude projects from impact assessment processes.

  Anyone can request a regional assessment under the IAA. In accordance with the Information and Management of Time Limits Regulations, the Minister has 90 days to respond to a request for regional assessment, with reasons. This decision is posted on the Registry, as required under subsection 97(1) of the IAA. For more information, consult the Operational Guide: Requesting a Regional or Strategic Assessment under the Impact Assessment Act.

  Planning and engagement

  Planning and engagement may often start after the Minister has decided to conduct a regional assessment; however, activities can begin earlier to help inform the Minister’s decision about whether to conduct a particular regional assessment. For example, early activities can begin after a request to conduct a regional assessment is received by the Minister, or when the Government of Canada is proactively considering whether to conduct a regional assessment on a particular issue.

  Engagement in the planning stages may be conducted with other federal departments, stakeholders, the public, Indigenous Peoples, and other jurisdictions, as determined on a case-by-case basis. Where a regional assessment would include areas outside of federal lands, this phase provides the basis for agreements or arrangements that the Minister may enter into with other jurisdictions for the joint conduct of regional assessments.

  Planning and engagement can inform many aspects of a regional assessment, including:

  • the scope of the regional assessment;
  • the development of objectives and potential outcomes;
  • key issues to be considered and geographical boundaries; and
  • how the regional assessment would be conducted, including governance structures and mechanisms for participating and receiving input.

  For every regional assessment, the Agency supports the Minister in planning the assessment. This includes any engagement activities and the preparation of the proposed terms of reference. The terms of reference may indicate, among other things, who is conducting the assessment, the objectives, process the assessment will follow, a time limit within which the assessment must be completed, and opportunities for participation and engagement.

  Regional assessment by a committee or by the Agency

  The Minister decides whether a regional assessment is to be conducted by a committee or by the Agency. The Agency provides advice and assists the Minister with this decision. The Agency’s advice will take into account considerations including whether the region is partially or totally outside of federal lands, potential opportunities to cooperate with other jurisdictions, the expertise available within the federal government to conduct the assessment, and the degree of concern expressed by Indigenous Peoples and the public with regard to development in the proposed region and its effects.

  Agency-led regional assessment

  The Agency will typically lead a regional assessment when it is entirely located on federal lands. In cases where the effects relevant to a regional assessment fall within the mandate and responsibilities of multiple federal departments, a working group will be established to support the Agency in conducting the assessment, in accordance with existing memoranda of understanding established between the Agency and other federal departments.

  Committee-led regional assessment

  A committee will typically conduct regional assessments that are partly or totally outside of federal lands, when multiple jurisdictions are involved, or where there is a high degree of public concern.

  A committee is comprised of one or more independent experts appointed by the Minister. Members are selected based on their knowledge, experience and expertise relevant to the regional assessment, including their knowledge of the interests and concerns of the Indigenous Peoples of Canada that are relevant to the assessment.

  A flexible, case-by-case approach to appointing committee members allows the Minister to consider the specific context of each regional assessment while respecting the requirements of the IAA. When the Minister establishes a committee to conduct regional assessments, the Agency supports the committee in its conduct of the assessment.

  Regional assessment in cooperation with another jurisdiction

  In cases where a regional assessment is proposed for a region that is not entirely composed of federal lands, the Minister may enter into an agreement or arrangement with another jurisdiction about the joint establishment of a committee and the manner in which the assessment is to be conducted. The Minister must establish or approve the committee’s terms of reference including a specified time limit within which the assessment must be completed. The Minister must also appoint or approve the appointment of the members of the committee, of which at least one person must have been recommended by the other jurisdiction.

  Examples of how the federal government and another jurisdiction would work cooperatively include:

  • working together in the planning and design phase of the assessment;
  • negotiating agreements for how jurisdictions will work together to establish and support a committee;
  • jointly developing the terms of reference, including the regional assessment’s goal, objectives, outputs, approaches and governance;
  • working together in considering and responding to the committee’s report and its associated recommendations; and
  • working together in any associated follow-up program design to update the regional assessment’s information and analysis and track its implementation.

  Conduct of regional assessment and regional assessment report

  In conducting a regional assessment under the IAA, the committee or the Agency must fulfill the requirements of the terms of reference established by the Minister in a manner guided by this policy framework and the IAA.

  One or more study areas will be defined for a regional assessment for the purposes of describing the current environmental, health, social and economic conditions, and for considering potential effects of development, including cumulative effects.

  The conduct of the regional assessment will result in a draft regional assessment report, which, at a minimum, will be available through the Registry for public comment. The Registry is equipped with an online commenting tool to facilitate the submission of comments in real time. Once public comments are taken into account, the Agency or the committee will submit the final report to the Minister and the Agency must post a copy of the report on the Registry. Other public participation mechanisms may also be used during the regional assessment process.

  On a case-by-case basis, the Minister may provide direction on actions related to the outcomes of the regional assessment, such as follow-up and monitoring activities. These activities may include, for example, actions to track the implementation and effectiveness of the regional assessment outcomes accepted by the Minister, as well as actions to regularly review the regional assessment and update it, as required.

  6. Key elements and guiding principles

  The following key elements and guiding principles are incorporated into the planning and conduct of regional assessments to ensure consistency with the principles and objectives of the IAA.

  Cooperation

  Regional assessment provides opportunities for cooperation with other jurisdictions (including Indigenous jurisdictions) in planning and conducting assessments, and in the implementation of their outcomes. A regional assessment may involve other jurisdictions or multiple federal departments, depending on the location of the assessment, its objectives and the sectors or activities it is focusing on. For example, an assessment to consider the effects from activities from multiple sectors and in regions outside of federal lands would be undertaken in cooperation with the implicated provincial governments, as well as with the federal departments whose mandates are connected to the assessment.

  Indigenous involvement and engagement

  Engaging with Indigenous Peoples throughout a regional assessment is part of the relationship between the Government of Canada and Indigenous Peoples. It should be undertaken in a manner that respects their rights and supports reconciliation.

  The IAA recognizes the special Constitutional relationship between the Crown and Indigenous Peoples, and the particular perspectives and interests Indigenous Peoples bring to assessment processes. Regional assessments are also a tool to understand and help manage issues that have the potential to impact Indigenous Peoples and their rights.

  Regional assessments offer opportunities to engage, collaborate or establish partnerships with First Nations, Inuit and Métis peoples so that the objectives and outcomes of the process are aligned with their interests and are inclusive of Indigenous knowledge and perspectives. The manner in which this is accomplished is determined with Indigenous Peoples on a case-by-case basis, guided by Agency’s best practices, including:

  • Guidance on Indigenous Participation in Impact Assessment;
  • Guidance on Collaboration with Indigenous Peoples in Impact Assessment;
  • Guidance on Indigenous Knowledge under the Impact Assessment Act: Procedures for Working with Indigenous Communities; and
  • Policy Context on Assessment of Potential Impacts on the Rights of Indigenous Peoples.

  The Agency is committed to deep engagement with, and participation by, Indigenous communities to receive information and advice on regional assessment processes, including on the terms of reference for regional assessments. A range of engagement approaches are possible, such as Indigenous-specific engagement sessions, Indigenous-led research and studies to inform regional assessment and the establishment of Indigenous advisory bodies.

  Funding to support Indigenous involvement in regional assessments is provided through the Agency’s Participant Funding Program.

  Scientific information and Indigenous knowledge

  Regional assessments analyze and incorporate relevant scientific information and Indigenous knowledge, including knowledge provided by Indigenous women. Both Indigenous and scientific knowledge systems are to be equally valued and used in tandem.

  Regional assessments ensure the integrity, transparency and credibility of scientific information and Indigenous knowledge by:

  • actively seeking information from a variety of sources;
  • making comments received available on the Registry; and
  • posting on the Registry all information used in conducting a regional assessment, including expert advice from federal authorities (see exception below regarding confidential Indigenous knowledge).

  Federal authorities in possession of expert knowledge or information related to the physical activities considered in a regional assessment must provide it to the Agency or committee upon request. Other partners in the assessment, such as provincial jurisdictions, may also provide expert knowledge or other relevant information.

  The consideration of Indigenous knowledge in a regional assessment must be based on a relationship grounded in respect and trust, and must conform to Indigenous communities’ protocols governing the use of their knowledge. For more information on Indigenous knowledge under the IAA, see the Guidance: Indigenous Knowledge under the Impact Assessment Act: Procedures for Working with Indigenous Communities.

  Indigenous knowledge, including knowledge provided by Indigenous women, is sought through ongoing relationships and dialogue with Indigenous communities and incorporated into regional assessments in a manner Indigenous Peoples and knowledge holders consider appropriate. Processes to include Indigenous knowledge in regional assessments are inclusive of Indigenous women, youth, Elders, gender diverse and Two-Spirit peoples. Regional assessments are conducted in a manner that aligns with the Policy Context: Indigenous Participation in Impact Assessment and Indigenous Knowledge Policy Framework for Project Reviews and Regulatory Decisions. Indigenous knowledge provided to the Agency or committee in confidence must be kept confidential and not disclosed or posted on the Agency website, unless certain exceptions apply (see section 119 of the IAA). For more information on handling confidential Indigenous knowledge, see the Guidance: Protecting Confidential Indigenous Knowledge under the Impact Assessment Act.

  Meaningful public participation

  Meaningful public participation is a fundamental element of regional assessments and a legal requirement under section 99 of the IAA. The Agency or the committee conducting a regional assessment must ensure that the public is given the opportunity to participate in a meaningful way.

  Meaningful public participation in regional assessments should reflect considerations articulated in the Agency’s Framework on Public Participation. This may include:

  • providing opportunities to be involved in the planning of a regional assessment and to influence its design (e.g. approach, objectives, scope, planned outcomes);
  • providing opportunities for engagement and comment at key points in the regional assessment process; and
  • ensuring information is made available to participants in a transparent manner, through the use of the Registry, so that participants have the necessary information to actively participate.

  Funding to support public involvement in regional assessments is provided through the Agency’s Participant Funding Program.

  Predictability and transparency

  Regional assessments are conducted in a fair, impartial and transparent manner, consistent with the principles and objectives of the IAA. The Agency or the committee must ensure that the information it uses when conducting a regional assessment is made available to the public. The Registry provides access to a body of evidence to support engagement and participation opportunities that in turn supports decision-making processes. This information includes:

  • public notices or announcements related to the conduct of regional assessments, including opportunities for public participation;
  • comments or submissions received from participants throughout the regional assessment process;
  • information provided by federal authorities or other sources related to the regional assessment; and
  • documents produced by the Agency or committee conducting the regional assessment, including the final report to the Minister.

  Gender-based Analysis Plus

  Gender-based Analysis Plus (GBA Plus) provides a framework to describe the full scope of potential positive and negative effects under the IAA. GBA Plus provides a framework and a set of analytical questions to guide regional assessments and to determine if there are different effects for subgroups of the population. Best practices can be found in Agency guidance including:

  • Guidance on Gender-based Analysis Plus in Impact Assessment; and
  • Gender-based Analysis Plus in Impact Assessment Fact Sheet.

  Fostering sustainability

  One of the purposes of the IAA is to foster sustainability. Section 2 of the IAA defines “sustainability” as the “ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations.” When scoping regional assessments under the IAA, the interdependence of human-ecological systems and the well-being of present and future generations should be considered. In this way, regional assessments can contribute to the goals of the IAA and toward achieving Canada’s environmental commitments.

  Footnotes

  ¹ For the purposes of this policy, a ‘region’ is defined as a geographic area that is located totally or in part on federal lands or entirely outside federal lands. Regions are determined based on a number of factors including definable and potentially affected environmental or socioeconomic components and systems, existing administrative boundaries, or other factors or characteristics.