Will Your Construction Project Be Subject to an Environmental Assessment?

If the project relates to infrastructure or industrial construction of a certain magnitude, be aware that an environmental assessment may be required.

Quebec Environmental Assessment

There is an environmental assessment procedure in Quebec that is likely to apply to any major infrastructure or industrial construction project. In fact, since 1978, there are four different environmental assessment procedures in Quebec depending on the territory in which a project will be carried out. Three of these procedures apply in the northern regions of Quebec and are based on agreements between the governments of Quebec and Canada and, depending on the circumstances, the Cree Nation, the Inuit Nation and the Naskapi Nation. In southern Quebec, the environmental assessment procedure has been amended in 2017, when Bill 102 was passed by the National Assembly of Quebec.

What are the projects covered by this regime?

The applicable procedure in southern Quebec applies to projects that fall within one of 38 categories and that are subject to an environmental assessment by regulation. These projects include:

• some public works,
• certain works that are likely to affect the body of water,
• certain types of industrial establishment or industrial activities, and
• certain establishments likely to emit significant quantities of greenhouse gases.

In addition, the government has, under section 31.1.1 of the Environment Quality Act, the "exceptional" power to subject a project to an environmental assessment if it does not fall within the 38 project categories provided for in the regulations. The government has this power in the following cases:

• If it believes that the environmental stakes are high and that public concern warrants the assessment;
• The project involves new technology or a new type of activity with significant predicted impact;
• If it believes that the project involves major climate change issues.

Brief description of the procedure

The initiator of a project who is subject to an environmental assessment under Quebec law must first file a Project Notice describing the intended project. The Minister then sends the initiator a directive indicating the nature, scope and extent of the impact assessment to be carried out. Within 30 days following the publication of a notice in the press, any person, group or municipality may submit comments to the Minister regarding any issues that should be addressed by the project's impact assessment. The Minister shall inform the project initiator of any relevant issues which justify their inclusion in the impact study.

The impact assessment will be the subject of an agreement by the Minister regarding its acceptability. Once this step has been completed, the project initiator will trigger a 30-day public information period during which any person, group or municipality may request a public consultation or mediation or a "targeted consultation". The Minister shall inform the project initiator of the way in which the public consultation will take place.

If there is a public hearing, it is held under the auspices of the Bureau d'audience publique sur l'environnement (BAPE). Quebec law requires that a public hearing be held within four months, a targeted consultation within three months and a mediation within two months.

After taking into account the results of the public consultation, the government may, by decree, authorise a project, with or without modification or with conditions, restrictions or exclusions, or refuse to issue a permit. The government authorisation may include norms, conditions, restrictions or exclusions, which may differ from those prescribed by regulations made under the Act. In emergency situations or to prevent an impending disaster, the government may authorise the execution of remedial or preventive work by exempting them from the environmental assessment procedure.

Federal Impact Assessment

The Canadian federal government also has an impact assessment procedure that applies to a number of projects under federal constitutional jurisdiction and other industrial projects that are considered significant.

As is the case at a provincial level, there are four different federal environmental assessment procedures; however, unlike Quebec, in some cases they can apply simultaneously. Three of these procedures apply in the same northern regions of Quebec as certain Quebec procedures, as they also stem from agreements reached between the Governments of Quebec and Canada and, depending on the situation, the Cree Nation, the Inuit Nation and the Naskapi Nation. A new general federal impact assessment procedure came into force on 28 August, which is the date that Bill C-69 - which replaces the 2012 Canadian Environmental Assessment Act - also came into force. The new federal legislation is called the Impact Assessment Act.

What projects are covered by this procedure?

The impact assessment procedure applicable at a federal level applies to projects that fall within one of the 61 project categories that are automatically subject to an impact assessment by regulation. These projects include work in the federal public domain, certain projects that clearly fall within federal constitutional jurisdiction, and certain types of industry that are of particular federal interest. In addition, the Minister has the authority, under section 9 of the Impact Assessment Act, to subject a project to an impact assessment where it does not fall within the 61 project categories provided for in the regulations. The Minister may exercise this power on request or by his own initiative, in the following cases:

• If it deems that carrying out the activity may result in effects that are considered negative, either directly or indirectly, within an area of federal jurisdiction;
• If it deems that public concern warrants the assessment.

Brief description of the procedure

The initiator of a project subject to an impact assessment under federal law must first file an initial project description that contains the information prescribed by regulation with the Impact Assessment Agency of Canada (IAAC). Filing this initial project description is part of the "Preparatory Step". The project description is published on the IAAC website. Members of the public, Aboriginal groups and federal institutions are invited to comment and raise questions about the project.

The IAAC will decide whether an impact assessment of the project is required. It makes its decision based on criteria set out in the Act. The IAAC is the body that will generally carry out the impact assessment, in collaboration with the project initiator who must prepare or compile the assessments or information required by IAAC.

The Minister may, if it is considered to be in the public interest, refer a project to a review panel to hear the views of citizens and other participants, especially Aboriginal peoples, in relation to the proposed project. Unless additional time is granted, the panel is normally required to complete its review of the project within 600 days.

The Act provides that the Minister may enter into an agreement with another government to conduct a joint review with a jurisdiction of that government and may even allow the impact assessment procedure of another government to be substituted for that of the Impact Assessment Act.

At the end of the impact assessment, the Minister will decide whether any adverse effects in an area of federal jurisdiction or any negative effects - direct or otherwise - that have been identified in the impact assessment report are in the "public interest", according to the criteria set out in the Act, as well as the extent to which these effects are significant. If this is the case, the Minister will issue a decision statement that allows the project in question to proceed, subject to any conditions the Minister considers necessary, acting in the public interest. The Minister also has the authority to refer to the Governor in Council, i.e. the federal cabinet, the decision on whether the adverse effects are in the public interest.