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Environment (Fed) - Impact Assessment Act (IAA)

. Canada (Minister of Environment and Climate Change) et al v Ermineskin Cree Nation et al

In Canada (Minister of Environment and Climate Change) et al v Ermineskin Cree Nation et al (Fed CA, 2022) the Federal Court of Appeal reviewed basics of the Impact Assessment Act (IAA):
(1) The Designation Process

[13] The IAA, along with the Physical Activities Regulations, S.O.R./2019-285, create a comprehensive regime where the federal government evaluates the potential for physical activities to cause adverse environmental effects. As with other impact assessment regimes, the IAA is meant to reconcile a "“proponent’s development desires with environmental protection and preservation”" (Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, 88 D.LR. (4th) 1, at para. 71).

[14] Under subsection 9(1) of the IAA, the Minister can "“designate”" a physical activity to be subject to the IAA, deeming it a "“designated project”". A designated project undergoes an initial assessment of its impacts, environmental and otherwise, and is subject to further federal oversight and approval where appropriate. Once a project is designated, the proponent is prohibited from doing any acts or things connected with carrying out the projects that may have effects on federal jurisdiction until the federal assessment process is completed (IAA, s. 7).

[15] Requests for the Minister to designate a physical activity can be made by an Indigenous nation, a non-governmental organization, a federal authority, another jurisdiction or any member of the public. Upon receiving a designation request, the Impact Assessment Agency of Canada (the Agency) first considers the request, seeks input from those affected including "“potentially affected Indigenous groups”" and various governmental departments with relevant expertise. The Agency then issues a recommendation to the Minister, which is "“informed by science, Indigenous and community knowledge, input from the proponent, and consultations with other jurisdictions, as applicable”" (Appeal Book, Tab 6, pp. 1208-1209, 1215-1216; IAA, ss. 9(2), 9(3)).


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