Designated Classes of Projects Order: SOR/2019-323

Canada Gazette, Part II, Volume 153, Number 19

Registration
SOR/2019-323 August 30, 2019

IMPACT ASSESSMENT ACT

Whereas the Minister of the Environment is of the opinion that the carrying out of a project that is a part of a designated class of projects described in the annexed Order will cause only insignificant adverse environmental effects;

And whereas, pursuant to subsection 89(2) of the Impact Assessment Act footnote a, that Minister has considered the comments received from the public in deciding whether to make the designation;

Therefore, the Minister of the Environment, pursuant to subsection 88(1) of the Impact Assessment Act footnote a, makes the annexed Designated Classes of Projects Order.

Gatineau, August 30, 2019

Catherine McKenna
Minister of the Environment

Designated Classes of Projects Order

Interpretation

Definitions

1 The following definitions apply in this Order.

Designated Classes of Projects

Federal lands or outside of Canada

2 The classes of projects set out in Schedule 1 and that are to be carried out on federal lands, other than lands administered by the Parks Canada Agency, or outside Canada are designated for the purposes of section 88 of the Act.

Lands administered by Parks Canada Agency

3 The classes of projects set out in Schedule 2 and that are to be carried out on federal lands administered by the Parks Canada Agency are designated for the purposes of section 88 of the Act.

Excluded Projects

4 The classes of projects set out in Schedules 1 and 2 do not include projects

Coming into Force

S.C. 2019, c. 28, s. 1

5 This Order comes into force on the day on which section 1 of An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, chapter 28 of the Statutes of Canada, 2019 comes into force, but if it is registered after that day, it comes into force on the day on which it is registered.

SCHEDULE 1

(Sections 2 and 4)

Designated Classes of Projects (Outside Canada or on Federal Lands not Administered by Parks Canada Agency)

PART 1

General

1 The operation, maintenance or repair of a physical work.

2 Physical activities that are carried out entirely within the interior of a building.

3 (1) The construction or operation of a well to conduct geotechnical or environmental investigations of the subsurface characteristics of a site for the purpose of scientific research or of assessing or monitoring the site for contamination.

(2) The decommissioning of a well that was used to conduct a geotechnical or environmental investigation referred to in subsection (1).

(3) The classes of projects described in subsections (1) and (2) do not include projects that involve the placement of temporary or permanent fill in a water body.

PART 2

Buildings

4 (1) On developed land, the construction, installation, operation, modification, demolition, decomissioning, removal or replacement of a building that has a footprint of no more than 1 000 m2.

(2) On developed land, the expansion of a building that does not increase the building’s footprint to more than 1 000 m2.

(3) On land other than developed land, the construction or installation of a building that has a footprint of no more than 100 m2.

(4) The classes of projects described in subsections (1) to (3) do not include projects that

PART 3

Physical Works Related to Building or Other Structure

5 (1) On developed lands, the construction, installation, operation, modification, expansion, replacement, removal or decomissioning of any of the following physical works that are related to a building or other structure and that have a footprint, when combined with the footprint of all other physical works related to the building or structure, of no more than 1 000 m2:

(2) The classes of projects described in subsection (1) do not include projects that

6 (1) On lands other than developed lands, the construction, installation, operation, modification, expansion, replacement, removal or decomissioning of any of the following physical works that are related to a building or other structure and that have a footprint, when combined with the footprint of all other physical works related to the building or structure, of no more than 100 m2:

(2) The classes of projects described in subsection (1) do not include projects that

PART 4

Utility Infrastructure

7 (1) The installation, operation, replacement, modification, decommissioning, abandonment or removal of a hydrant or hook-up that is part of a utility distribution system for a municipality or farm.

(2) The construction, installation, operation, replacement, modification, expansion, removal or decommissioning of water-related utility infrastructure, other than water pipelines, that has a footprint of no more than 100 m2.

(3) The construction, installation, operation, replacement, modification, expansion, removal or decommissioning of water pipelines that are

(4) The modification of a water treatment facility.

(5) The construction, installation, operation, replacement, modification, expansion or abandonment of a portion of any of the following physical works that is located more than 30 m from a water body and are underneath, or on developed land that is alongside and contiguous to, a railway or road:

(6) The classes of projects described in subsections (1) to (5) do not include projects that

PART 5

Above Ground Storage Tank Systems

8 (1) The installation, replacement, operation, modification, expansion or removal of an above ground storage tank system for petroleum products or allied petroleum products that is

(2) The classes of projects described in subsection (1) do not include projects that involve the disturbance of known or suspected subsurface contamination.

SCHEDULE 2

(Sections 3 and 4)

Designated Classes of Projects (On Federal Lands Administered by Parks Canada Agency)

PART 1

General

1 The operation or maintenance of a physical work.

2 Physical activities that are carried out entirely within the interior of a building.

3 The maintenance, repair or modification of a roadway, highway or parkway or of related infrastructure.

4 The installation, maintenance, repair or replacement of prefabricated structures.

5 The construction, maintenance, repair or replacement of a rudimentary campsite located within an existing rudimentary campground that does not involve the construction of a new toilet system or the use of heavy equipment.

6 The construction, installation, maintenance, repair or replacement of tent pads or movable accommodations at an existing campground that does not involve

7 (1) The construction or operation of a well to conduct geotechnical or environmental investigations of the subsurface characteristics of a site for the purpose of scientific research or of assessing or monitoring the site for contamination.

(2) The decommissioning of a well that was used to conduct a geotechnical or environmental investigation referred to in subsection (1).

(3) The classes of projects described in subsections (1) and (2) do not include projects that involve the placement of temporary or permanent fill in a water body.

8 The operation, maintenance or repair of overhead or underground electrical transmission or distribution lines or related infrastructure.

9 The maintenance, repair, modification or expansion of a land-based trail that does not involve

10 (1) The operation of an above ground petroleum storage tank system for petroleum products or allied petroleum products.

(2) The removal, replacement or modification of an above ground petroleum storage tank system for petroleum products or allied petroleum products or its base that does not involve the removal of vegetation with heavy equipment.

11 (1) The maintenance, repair or removal of shoreline stabilization works, wharves, piers, docks, boathouses, launch ramps or navigational aids.

(2) The maintenance or repair of causeways, fishways, fish ladders, retaining walls or breakwaters.

(3) The classes of projects described in subsections (1) and (2) do not include projects that

PART 2

Historic Canals and National Marine Conservation Areas

12 (1) The following classes of projects that are carried out within a historic canal or national marine conservation area:

(2) The classes of projects described in subsection (1) do not include projects that

PART 3

National Parks and National Historic Sites

13 (1) The following classes of projects that are carried out on developed land that is accessible by road within a national historic site or an area of a national park that is zoned “Zone IV” or “Zone V” in accordance with the management plan, other than those that are carried out in the town of Banff:

(2) The classes of projects described in subsection (1) do not include projects that involve

14 (1) The following classes of projects that are carried out on developed land within the town of Banff:

(2) The classes of projects described in subsection (1) do not include projects that involve

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

The Impact Assessment Act (IAA) sets out requirements in relation to projects on federal lands or outside Canada (sections 81 to 91). Federal authorities and authorities set out in Schedule 4 of the IAA (authorities) have responsibilities in relation to

Authorities review large numbers of projects, many of which present only insignificant or no potential for adverse environmental effects. Routine and low-risk projects may include maintenance and repair of existing physical works, replacement of equipment within a building, or the installation of a bench in a national park. The time needed to plan and review such projects is typically very short — often no more than a day or two.

The IAA provides flexibility by enabling the Minister of the Environment (the Minister) to designate, by order, classes of projects that, if carried out, will cause only insignificant effects (section 88). The Designated Classes of Projects Order (the Ministerial Order) sets out such classes of projects. For these projects, authorities would not be subject to the requirements under the IAA. The ability to exempt these low-risk activities through the Ministerial Order ensures that government resources are directed at assessing proposals with greater potential for adverse environmental effects.

Background

The Government of Canada is implementing new rules that protect the environment, recognize and respect Indigenous rights, and strengthen the economy through the IAA.

The IAA establishes an impact assessment process to serve as a planning tool that takes into consideration the whole range of environmental, health, social and economic effects of projects. The new impact assessment process will be led by the Impact Assessment Agency of Canada (the Agency). Impact assessments under the IAA are conducted for proposed physical activities that are “designated projects,” either by regulation or by the Minister.

The IAA also includes requirements relating to non-designated projects that take place on federal lands or outside Canada (sections 81 to 91). Before taking action or making a decision that would enable a project to proceed, authorities must determine whether the project is likely to cause significant adverse environmental effects. If the authority determines that the project is likely to cause significant adverse environmental effects, the project is not permitted to proceed unless those effects are determined by the Governor in Council to be justified in the circumstances.

The IAA includes provisions to enhance transparency and rigour. In particular, authorities are now required to post on the Canadian Impact Assessment Registry website a notice of their intent to determine whether a project is likely to cause significant adverse environmental effects, and invite the public to provide comments (subsection 86(1)). There is a minimum 30-day interval between this notice of intent and the final notice setting out the determination (subsection 86(2)). In addition, authorities must consider a list of factors when making the determination, including the effects of a project on the section 35 rights of Indigenous peoples; mitigation measures that address significant adverse environmental effects; community knowledge and Indigenous knowledge provided with respect to the project; and comments from the public (section 84).

Over 75 authorities are subject to these requirements, including federal departments, departmental corporations, agencies, crown corporations, port authorities and offshore boards.

Recognizing that undertakings with limited potential for adverse environmental effects are subject to these requirements, subsection 88(1) of the IAA authorizes the Minister to designate a class of projects if, in the Minister’s opinion, the carrying out of the project that is part of the class will cause only insignificant adverse environmental effects. For projects that are part of a designated class, authorities are exempt from the requirements to determine whether the project is likely to cause significant adverse environmental effects (sections 82 and 83), post a public notice and provide a comment period (section 86).

Objective

The Ministerial Order will designate classes of projects on federal lands and outside Canada that, in the Minister’s opinion, will cause only insignificant adverse environmental effects. An authority seeking to carry out a project that is part of one of these classes would not be subject to the obligations under sections 82 and 83 for projects on federal lands and outside Canada, respectively.

Description

The classes of projects included in the Ministerial Order are the most common, routine and straightforward projects that, if carried out, will cause only insignificant adverse environmental effects. Other classes of projects may be proposed at a later date.

The designated classes of projects were carefully scoped to ensure that they only include projects that, if carried out, will cause only insignificant adverse environmental effects. The following criteria were considered when determining whether a class of projects should be included in the Ministerial Order:

The classes of projects with respect to which authorities would not be subject to the IAA requirements are set out in the schedules to the Ministerial Order. Each class of projects includes a description of the physical activities (e.g. construction, installation, maintenance, repair, decommissioning or abandonment) in relation to a physical work. Schedule 1 sets out classes of projects on federal lands, other than lands administered by Parks Canada, and lands outside Canada. Schedule 2 sets out classes of projects on federal lands that are administered by Parks Canada.

The Ministerial Order also includes general conditions to provide an additional safeguard, ensuring that a project would not be covered by the Ministerial Order (i.e. would require an authority to make a determination and provide public notice) if

In addition to these overarching conditions, each of the classes is scoped to capture projects that will cause only insignificant adverse environmental effects. This includes setting out specific limitations on each class, such as a specified size threshold and limitations specific to these project classes.

Schedule 1 — Designated Classes of Projects (Outside Canada or on Federal Lands not Administered by Parks Canada Agency)

This schedule designates the classes of projects that are to be carried out on federal lands, other than lands administered by Parks Canada, and on lands outside Canada. The classes of projects in this schedule include minor projects such as the maintenance and repair of a physical work and physical activities within the interior of a building. The classes in this schedule also include certain physical activities (e.g. construction, operation, replacement, decommissioning) related to the following physical works (subject to certain class-specific conditions):

Schedule 2 — Designated Classes of Projects (On Federal Lands Administered by Parks Canada Agency)

This schedule designates classes of projects that are to be carried out on lands administered by Parks Canada. As with the first schedule, the classes of projects include the operation or maintenance of a physical work and physical activities that are contained within the interior of a building. They also include various physical activities related to the following physical works (subject to certain class-specific conditions):

In light of the careful scoping of each class of projects based on the above criteria and the specific and general class exclusions, the classes of projects in the Ministerial Order are limited to projects that, if carried out, will cause only insignificant adverse environmental effects.

Regulatory development

Consultation

The Consultation Paper on a Ministerial Order that sets out the Classes of Projects on Federal Lands and Outside Canada that will cause only Insignificant Adverse Environmental Effects was published for public comment from July 22, 2019, to August 21, 2019. The Consultation Paper outlined the proposed class of projects to be included in the Ministerial Order, as well as the rationale and the approach taken for developing the Order.

An email was sent out to stakeholders, and to over 1 000 Indigenous groups, advising them of the opportunity to provide feedback on the proposal. In total, 43 submissions were received from 23 Indigenous groups, 4 authorities, 11 industry businesses and associations, 4 non-governmental organizations, and 1 territorial government .

In addition, officials from the Agency held meetings with officials from the Assembly of First Nations and non-governmental organizations that are members of the Canadian Environmental Network.

The Agency also worked collaboratively with federal authorities and implicated federal departments to develop the Ministerial Order.

In general, no major concerns were raised during consultations about the classes of projects included in the Ministerial Order.

Authorities were generally supportive and emphasized the desire to avoid unnecessary administrative burden associated with making a determination and posting public notice for those projects with only insignificant effects. Airport authorities, port authorities, the oil and gas industry, and other stakeholders indicated the need for additional classes of projects specific to their industry.

Indigenous groups were critical of the length of the comment period and raised concerns that projects that are included in the Ministerial Order could impact Indigenous rights and interests. Some Indigenous groups also suggested that projects requiring the approval of Indigenous governments should not be included in the Ministerial Order (i.e. should be subject to the IAA), and that conditions relating to potential damage to sites and resources of historical or archeological significance should be applied evenly across the project classes.

Non-governmental environmental organizations recommended that any project located in a sensitive ecological area, including a national wildlife area, or with the potential to harm sensitive ecosystems or species at risk, should not be included in the Ministerial Order (i.e. should be subject to the IAA). Concerns were also raised with the proposed project classes for lands administered by Parks Canada, given the specific ecological and legislative context of these lands. Some submissions also suggested that project classes involving oil and gas pipelines as well as underground and overhead electrical transmission lines should be modified or removed from the Ministerial Order due to their potential for significant effects. Non-governmental environmental organizations and Indigenous groups also raised concerns that while individual projects may have only insignificant effects, they may have the potential for cumulative effects in the context of other projects.

Some minor changes were also suggested in relation to specific project classes, and suggestions were made for defining certain terms in the Ministerial Order.

In response to this feedback, and an analysis of the project classes, modifications were made to provide additional safeguards to ensure that only those projects with insignificant adverse environmental effects are included in the Ministerial Order, and to ensure clarity of definitions and consistency across the project classes.

Most notably, modifications were made to the conditions that apply across all the project classes:

Modifications were also made to project classes, to focus on those projects with insignificant adverse environmental effects:

Minor changes were also made to improve clarity and consistency across the project classes and to provide definitions of terms where appropriate. With respect to potential cumulative effects, the conditions set out in the Ministerial Order do provide an overarching safeguard to ensure that projects that would result in a change to the characteristics of a water body, to a migratory bird or its nest, or to a species at risk or its critical habitat, or that require certain permits as described above, would be subject to the IAA. Also, authorities subject to the provisions of sections 81 to 91 of the IAA operate within broader mandates and legislative authorities. Projects carried out on federal lands are carried out in a way that is consistent with the context those legislative authorities, and are subject to appropriate management and planning regimes. In this context, and given that the project classes only cover routine and low-risk projects with insignificant adverse effects, the potential for significant cumulative effects is very limited.

With respect to project classes for lands administered by Parks Canada, some of the concerns raised have been addressed by the overarching conditions that apply to all project classes. In addition, Parks Canada has a management regime in place to ensure that adequate precautions are taken so that projects will result in insignificant adverse effects. For all project classes included in the Ministerial Order, there will be publicly available pre-approved routine impact assessments, which include an analysis of potential effects and standard mitigation measures that are to be applied. In addition, Parks Canada assesses and manages cumulative effects proactively through strategic environmental assessments of management plans. As a result, the exclusions do not pose a risk of creating unwanted cumulative effects or a risk to ecological integrity.

Guidance being developed by the Agency for federal authorities will address project descriptions that must be posted on the Canadian Impact Assessment Registry website, and issues related to project splitting.

Some of the comments made by Indigenous peoples will be addressed in guidance being developed by the Agency for federal authorities, respecting the IAA requirements for projects on federal lands and outside Canada. There will be further opportunities for engagement with Indigenous peoples on this guidance, which could include, for example, guidance on assessing the impacts on Indigenous peoples that might result from the environmental effects of a project, as well as appropriate mitigation measures that might be applied. Classes of projects specific to Indigenous lands and conditions that are specific to impacts on Indigenous peoples could be developed in consultation with Indigenous peoples in a future ministerial order.

Additional potential project classes, along with appropriate conditions, may be further considered in a future ministerial order.

Exemption from prepublication

The Ministerial Order is needed to avoid unnecessary administrative burden, and to provide certainty to authorities and other stakeholders regarding which projects on federal lands are not subject to requirements under sections 82 and 83 of the IAA. The final Ministerial Order is being published in the Canada Gazette, Part II, in order to ensure it is in place as soon as possible after the coming into force of the IAA. The Consultation Paper on a Ministerial Order that sets out the Classes of Projects on Federal Lands and Outside Canada that will cause only Insignificant Adverse Environmental Effects was published for a 30-day public comment period and served as an alternative for prepublication in the Canada Gazette, Part I.

Modern treaty obligations and Indigenous engagement and consultation

There are currently 30 modern treaties and self-government agreements across the country, of which several have provisions related to environmental, impact or development assessment. It should be noted that the application of federal environmental assessment legislation is very limited for over half of the treaties, especially in the territories.

The assessment identified some implications to modern treaty obligations related directly to the Ministerial Order. As the Ministerial Order would essentially identify the classes of projects that would not be subject to the IAA requirements, there would be no opportunity through that Act for modern treaty beneficiaries to comment on the potential environmental effects of those projects on federal lands within their treaty territories, or the potential impacts on their rights. However, given that the Ministerial Order would only set out classes of projects with insignificant adverse environmental effects, it is not expected to have implications or raise concerns in respect of modern treaty obligations. The authorities would still have to meet the treaty obligations and fulfill the duty to consult and, where appropriate, accommodate Indigenous peoples when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights. Moreover, modern treaties and self-government environmental, impact or development assessment processes would continue to apply.

Indigenous self-governments also manage federal lands: there are currently three groups with self-government agreements relevant to the federal lands provisions, and more in the negotiation process. These Indigenous governments have responsibilities related to the application of the federal lands provisions of the IAA. The impact of the Ministerial Order on those groups is likely to be minor. In some cases, the environmental assessment laws of the Indigenous governments may be more restrictive, and may apply to some projects excluded from the IAA by the Ministerial Order.

The IAA also includes a general clause to ensure that any existing treaty rights are not affected by the introduction of the new legislation and supporting regulations and policy:

The Agency individually notified each modern treaty and self-governing group of the consultation on the Consultation Paper on a Ministerial Order that sets out the Classes of Projects on Federal Lands and Outside Canada that will cause only Insignificant Adverse Environmental Effects and offered to meet with them, if interested.

We received two submissions from modern treaty groups: the First Nations of the Maa-nulth Treaty Society and the James Bay Advisory Committee on the Environment.

The Maa-nulth Treaty Society sought more information on the proposed Order and requested a meeting to discuss it, while also expressing that more time was needed to provide comments. It commented that the context, nature, purpose, size and extent of the works should inform the decision as to whether a project is excluded from the requirements set out in the IAA, in particular for certain project classes such as the maintenance and repair of a physical work, construction of new buildings, and water-related utility infrastructure. Some of these concerns are addressed by the modifications to the conditions that apply across all the project classes, which ensure that any project with certain effects would be subject to the IAA.

The James Bay Advisory Committee on the Environment was supportive of the overall objective of the Ministerial Order, but raised concerns regarding the length of the consultation period and opportunities for engagement. It sought confirmation that the Ministerial Order would not apply to its lands, and also requested further engagement with respect to technical guidance relating to federal lands.

There will also be opportunities for further engagement with modern treaty and self-governing groups on guidance being developed for federal authorities respecting the IAA requirements for projects on federal lands and outside Canada.

Instrument choice

Other instrument types were not considered as this would be inconsistent with the legislative scheme. Subsection 88(1) of the IAA specifies that the Minister may, by order, designate a class of projects that are not subject to the requirements under sections 82 and 83.

Regulatory analysis

Costs and benefits

The cost-benefit analysis assesses the difference between the baseline and incremental scenarios.

The baseline scenario reflects the requirements of the IAA in the absence of the Ministerial Order. Under the baseline scenario, the IAA would apply in relation to all projects proposed on federal lands where the authority is the proponent, provides financial assistance, provides land, or issues a permit, authorization, etc., and to projects outside Canada that an authority intends to carry out or financially support. Authorities will be required to make a determination about whether a project is likely to cause significant adverse environmental effects, to post a notice of intent to make such a determination, and to post a final notice setting out the determination no sooner than 30 days from the first notice.

The baseline scenario would apply to a large number of low-risk projects. For example, Parks Canada, Crown-Indigenous Relations and Northern Affairs Canada and Canadian port authorities, which represent a portion of the authorities to whom the Ministerial Order would apply, review approximately 4 000 projects per year, approximately three quarters of which present only insignificant or no potential for adverse environmental effects. Many of these are routine projects that would typically require at most a day or two to plan and review. The baseline scenario would pose an administrative cost to authorities by causing delays to operational continuity and service delivery, which would be disproportionate to any potential environmental effects, and provide no added value to the Canadian public.

The incremental scenario represents the requirements under the IAA with the Ministerial Order in place. The Ministerial Order will result in fewer projects on federal lands and outside Canada being subject to the IAA. This will reduce the administrative burden on authorities, resulting in benefits to those authorities and the Canadian public. Exempting projects that have the potential for only insignificant adverse environmental effects through the Ministerial Order ensures that government resources are directed at assessing proposals with greater potential for adverse environmental effects. The Ministerial Order is also expected to benefit third parties that operate on federal lands, including businesses, by avoiding delays in decisions about their projects. There are no incremental costs associated with the Ministerial Order.

Small business lens

The small business lens does not apply as there would be no incremental costs resulting from the Ministerial Order.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as there would be no administrative burden costs resulting from the Ministerial Order.

Regulatory cooperation and alignment

The Ministerial Order does not have implications for alignment with other jurisdictions, as it applies only on federal lands, and it does not introduce any new regulatory requirements.

Strategic environmental assessment

A strategic environmental assessment was conducted on the IAA overall. The results of this analysis indicated that the IAA will have a positive effect on the environment that is a result of strong federal impact assessment and regulatory processes. With respect to the Ministerial Order, the intent is to set out classes of projects that would cause only insignificant adverse environmental effects. Consequently, it is not expected to have impacts on the environment and a strategic environmental assessment is therefore not required.

Gender-based analysis plus

A gender-based analysis plus (GBA+) conducted for the IAA as a whole found that the new impact assessment process is expected to have important positive effects on women, Indigenous peoples, and other vulnerable groups. With respect to the Ministerial Order, the classes of projects that are designated may reduce consideration of effects on or opportunities for engagement with these groups. However, only routine and low-risk projects with the potential for insignificant environmental effects were included in the Ministerial Order. Under section 81 of the IAA, “environmental effects” means changes to the environment and the impact of these changes on the Indigenous peoples of Canada and on health, social or economic conditions. As a result, exempting projects with only insignificant environmental effects from the requirements of the IAA is expected to have little or no impact from a GBA+ perspective.

Implementation, compliance and enforcement, and service standards

Implementation

Guidance relating to projects on federal lands and outside of Canada will assist authorities in understanding their obligations under the IAA.

Compliance and enforcement

There are no compliance and enforcement strategies related to this Ministerial Order, as the classes of projects that are designated through this Order would not be subject to the IAA.

Service standards

There are no service standards associated with this Ministerial Order.

Contact

Stephanie Lane
Director
Legislative and Regulatory Affairs Division
Impact Assessment Agency of Canada
Government of Canada
Email: ceaa.regulations-reglements.acee@canada.ca