Contributed by Robert Lyman © 2025. Robert Lyman’s bio can be read here.
EXECUTIVE SUMMARY
The Government of Canada recently published a discussion paper entitled, “Getting Major Projects Built in Canada – Discussion Paper on Proposed Legislative, Regulatory, and Policy Reforms”.[1] The stated objective of the proposed reforms is to allow the federal government to make decisions on major projects within two years. The reforms will apply to reviews of major projects that have already been designated by the Major Projects Office as being in the national interest. One year would be allowed for regulatory review and one year for the government to make a decision.
More efficient regulatory review of project proposals is badly needed. Over the past decade the time required to complete reviews of this nature often took at least four years and sometimes well over ten years. While reform is needed, the proposed ones are doomed to fail. There are too many factors that are beyond the control of the regulatory bodies that would be conducting the reviews.
Much of this is due to the requirements of the Impact Assessment Act. The Act specifies that a review of a project must assess 23 factors, including notably the anticipated changes to the environment; the health, social and economic effects; the effects of potential accidents; mitigation measures; impacts on indigenous groups; and the purpose and need for the project. It also must assess the extent to which the effects of the proposed project may hinder or contribute to the Government of Canada’s ability to meet its environmental commitments in respect of climate change. Gathering evidence and hearing testimony on all these subjects is necessarily time consuming.
The duration of reviews also has lengthened the time needed to conduct public hearings. In the pre-2015 period in Canada, public participation in major project reviews used a “directly and adversely affected” test to decide who might take part in hearings or file a Statement of Concern. Now the Impact Assessment Act explicitly provides an opportunity for any member of the public to participate in each phase of an impact assessment. This has opened the door to highly-organized campaigns by environmentalist and Indigenous groups to swamp the public hearing process.
Imposing an arbitrary deadline on the duration of a project review process flies directly in the face of Canadian laws that grant regulatory tribunals broad discretion to govern their hearings, as circumscribed by their statutory mandates and common law principles of procedural fairness. Regulatory bodies cannot arbitrarily refuse to consider relevant information or limit the duration of testimony in such a way as to deprive participants of their right to be heard and to respond to the evidence of opposing parties. If the federal regulatory body conducting the impact assessment or hearing the case for a project were to deprive participants of their right, the Federal Court could quash the hearing. The main barriers to sharply reducing the time spent on impact assessments are thus the Impact Assessment Act itself and the current statutory framework governing the rules of evidence.
The reforms proposed by the government may slightly accelerate the review and approval of so-called “clean energy” projects, meaning those that involve solar and wind energy, electricity storage, power transmission, carbon dioxide capture and storage and so on. They are unlikely, however, to hasten the review and approval of oil and gas projects. In the case of a proposed oil pipeline from Alberta to the northern British Columbia coast, such a project would be further barred by the legislated moratorium on oil tanker traffic in that region. The government should be candid in explaining this to the public. It seeks timely approvals of only those projects that support its climate policy and other environmental goals, not those that hasten the economic development and transportation of hydrocarbons.
[1] https://www.canada.ca/en/one-canadian-economy/services/simplifying-canada-process/engagement-supporting-timely-decision-making/getting-major-projects-built-canada-discussion-paper-proposed-legislative-regulatory-policy-reforms.html
Excellent article.