On June 20, 2024, the omnibus federal budget Bill C-69 received royal assent.1 As a result, the amendments to the Impact Assessment Act ("IAA") included in Bill C-69 came into force. A detailed discussion of the IAA amendments, which were crafted to address the Supreme Court of Canada's ("SCC") findings in Reference re: Impact Assessment Act2, is set out in a previous post here. A detailed discussion of the SCC case can also be found in a previous post here.
Key changes in the IAA amendments include:
- Revising the definition of "effects within federal jurisdiction" in order to focus on "non-negligible adverse change" relating to matters of federal purview;
- Limiting the Minister's ability to designate projects to those which may cause adverse effects within federal jurisdiction or direct or incidental adverse effects;
- Facilitating the substitution of provincial processes for environmental assessment; and
- Focusing the approval decision, in respect of a project, on whether the adverse effects on matters under federal jurisdiction will be significant – and if so, whether such effects will be justified in the public interest.
While the IAA amendments faced notable scrutiny in the Senate's Energy, the Environment and Natural Resources Standing Committee ("ENEV Committee") meetings (as discussed in our previous post), the amendments received royal assent without any revisions through their consideration in the House of Commons and the Senate.3
If certain commentary at the ENEV Committee meetings is any indication, another constitutional challenge to the IAA may be on the horizon.4 Further, it remains to be seen if the Impact Assessment Agency will implement the revised legislation in a manner that addresses the varied criticisms of the IAA and the amendments – in particular, such that there is the certainty of process, timelines and designation criteria sought by proponents and investors alike.
Later this year, the Physical Activities Regulations (the "Regulations") will also undergo a scheduled 5 year review.5 During this review, the Regulations will be revised to reflect the IAA amendments, which require that activities defined as designated projects in the Regulations be, in the Governor in Council's opinion, capable of causing adverse effects (i.e. non-negligible adverse changes) within federal jurisdiction, or direct or incidental adverse effects.
The IAA amendments included in Bill C-69 provide some guidance as to how existing projects will "transition" into the amended IAA scheme, with the Governor in Council having the ability to make additional transitional regulations as may be required.
We will continue to provide updates as additional clarity is obtained on the upcoming regulations and how the amendments will be implemented in practice. If you have any questions, please contact our team, who would be happy to assist.
Footnotes
1. Bill C-69, An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024, First Session, 44th Parl, 2024 (assented to 20 June 2024), SC 2024, c 17.
2. Reference re Impact Assessment Act, 2023 SCC 23.
3. ENEV Unrevised Meeting Transcripts from May 28, 30, and June 4.
4. In the ENEV Unrevised Meeting Transcript from June 4, Saskatchewan's Minister of Justice expressly stated Saskatchewan would consider bringing a constitutional challenge of the IAA if the amendments passed without further changes.
5. Physical Activities Regulations, s. 3.
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