Protection file

Canada’s Mining Laws Under Review: Environmental Protection, Investments and New Requirements

The IAA received Royal Assent on June 21, 2019 and came into force on August 28, 2019 replacing the Canadian Environmental Assessment Act (2012). The main objectives of the IAA are to provide greater certainty, coordination, efficiency, inclusiveness and transparency in the federal review process for assessing the impacts of major resource development projects and projects on federal lands. The desired effect of the IAA is to build confidence in the decision-making processes that will be conducted by the new Impact Assessment Agency of Canada (the Agency) based on evidence, science, sustainability, public engagement and Aboriginal participation. The new Canadian Impact Assessment Registry (Registry) website also allows the public to access information regarding the type of assessment and the current phase of the proposed project, as well as key documents filed by the proponent and the Agency, including notice of reasoned impact assessment decisions.

Under the ATIA, an assessment is required for “designated projects,” which can be determined in two ways: (i) projects described in the Physical Activities Regulations (commonly referred to as the Project List) and (ii) projects designated by use at ministerial discretion (where the Minister of the Environment is of the opinion that the physical activity may cause adverse effects within federal jurisdiction or direct or incidental adverse effects, or that the concerns of the related to these effects justify the designation).

The AAI includes five phases of impact assessment: planning, impact statement, impact assessment, decision-making, and post-decision. The new planning phase aims to create efficiencies, both in terms of time and cost, early in the process with more predictable timelines and outcomes on next steps for mining proponents. When the Agency determines that an impact assessment is required for a “designated project” and that it will carry out an impact assessment, the Agency must inform the proponent of the reasons for its decision and the information it requires the proponent to conduct its impact study. Evaluation. The IAA also gives the Minister the power to terminate a proposed project even before an impact assessment is decided upon or undertaken by the Agency if, in the opinion of the Minister, the proposed project would cause unacceptable environmental effects. within federal jurisdiction or if the proponent/project will not receive key permits or approvals from other federal regulatory agencies.

What is the future of the “net benefit” criterion of the Investment Canada Act (ICA)? What advice do you have for mining clients trying to navigate these regulations?

The net benefit test under the ICA is generally only applied to large value transactions due to significantly increased review thresholds for investors from countries that are members of the WTO or have entered into free trade agreements. -exchange with Canada.[1] As a result, most foreign investors need only file a brief notification under the ICA either before – or within 30 days after closing.