Impact Assessment After the 2023 Reference

The part of the amended federal assessment scheme that will decide the most files is not in the Act. It sits after the schedules, under a heading reading Related Provisions, in a run of sections enacted by the 2024 amending chapter and never consolidated into the numbered body of the statute. Their governing verb is deemed.

Anyone reading the amended sections to work out what changed for a project already inside the system is reading the wrong pages.

What the transitional sections actually do

Take a designated project that was in progress. If the Minister or the Agency takes any step at all in respect of it, under any of sections 10 to 59 of the amended Act, during the six months that begin on the commencement day, a notice goes up naming that first step, the provision it was taken under, the date and the project. From that moment everything done beforehand, if it is something that may or must be done under the amended Act, is deemed to have been done under the amended Act.

So the file does not restart, and it does not run to completion under the old text either. It converts, on a date fixed by whatever the Agency happened to do first.

The next subsection is the one worth circling. At the moment that first step is taken, the Agency may replace any time limit or period established by or under the amended Act with another time limit or period, for that project, and post a notice saying which ones it replaced and what they became. The provision goes on to say, for greater certainty, that this does not disturb the ordinary powers to extend or shorten a period.

The permitting page sets out those periods in full, running from posting event to posting event, several of them suspendable and three extendable without any stated ceiling. For a project caught by the transition, that structure is an opening position rather than a timetable.

An instrument can change statutes without changing a word

The same run of sections converts finished paperwork as well as work in progress.

A decision that no impact assessment was required, made and posted before the commencement day, becomes a decision under subsection 16(1) of the amended Act. A decision statement issued before that day may be deemed a decision statement under subsection 65(1) of the amended Act, if the Minister forms the opinion that its conditions could have been included in one and posts a notice saying so. The provision reaches back past the Act it amends: it names, as one of the statements it can convert, a statement issued under subsection 54(1) of the Canadian Environmental Assessment Act, 2012, which the transitional sections define and then call the 2012 Act. A pending request that the Minister designate an activity gets an answer with reasons within a stated period after the commencement day, and everything already done about that activity is deemed done under the new scheme once the answer goes up.

An instrument issued under a repealed Act can therefore end up standing as an instrument of the current one, with the same conditions attached to the same proponent, on a ministerial opinion and a posting. Nothing in the document itself changes. What changes is which statute it is now an instrument of, and the only record of the change is the notice.

Where the narrowing actually sits

The amendments did not go through the operative sections narrowing them one at a time. They put the limit inside a definition.

The operative term is now adverse effects within federal jurisdiction, which section 2 builds out of five kinds of change, every one of them qualified as having to be more than negligible. The first kind is a change to components of the environment that are within the legislative authority of Parliament, and the definition then lists them: fish and fish habitat, aquatic species and migratory birds, each pointing at the statute that defines it.

The reading consequence matters more than it looks. A person who wants to know how far the federal scheme reaches cannot find out by reading the prohibition in section 7, or the assessment factors in section 22, or the public interest test in section 63. Every one of those provisions inherits its reach from the defined term, and the term is where the whole of the limit lives. One edit to section 2 moves all of them together.

Schedule 3 is a door with nothing behind it

That first limb closes with an opening: any other component of the environment set out in Schedule 3. In the consolidation used for this build, Schedule 3 carries its two part headings, Components of the Environment and Health, Social or Economic Matters, and no entries beneath either of them. Its citation line records that the 2024 amending chapter reached it.

So the extensible part of the definition currently extends to nothing, and extending it later would not require touching a section of the Act at all.

A project nobody touches is a project the rule misses

The conversion is not automatic and the condition on it is easy to read past. Section 305 applies to a designated project only where the Minister or the Agency takes a step under one of sections 10 to 59 during those six months. A step is what triggers the notice, fixes the date and starts the deeming.

Which leaves the quiet file. A project on which nothing at all happens in that window is not converted by the section, and nothing else in the transitional run retrieved for this build says what governs it afterwards. That may be answered somewhere this desk has not looked, and it is stated here as a gap in the reading rather than as a gap in the law.

The gate did not move

Whether a mine enters the federal system at all is settled somewhere else entirely, by the Schedule to the Physical Activities Regulations, which lists project types at stated capacities. Those thresholds were last amended in March 2023 and the 2024 chapter left them alone.

Put the two facts together and an asymmetry appears that matters to anybody planning a project. Entry is decided by a capacity test that says nothing whatever about federal jurisdiction: a mill is caught on the ore it takes in, a quarry on what it turns out in a year. What happens after entry is now governed by a term defined wholly in terms of federal jurisdiction. The distance between the criterion for getting in and the criterion applied once inside is wider after the amendments than before them.

For a proponent the practical reading is short. The chance of being caught is what it was. What the assessment is about is not.

What this article does not settle

The 2023 reference named in the title of this piece was decided by the Supreme Court of Canada, and no copy of what the Court wrote sits in this desk's cache. The permitting page declines to state what the Court decided or why Parliament legislated afterwards, and nothing here fills that in. Nothing in this cache answers whether the amended scheme falls inside the legislative competence of Parliament, and only a fetched judgment would change that.

The narrower claim stands on the drafting alone. Continuity was the design goal, and the sections carrying it out are more specific about what happens to an existing file than the amended body of the Act is.

For two jurisdictions in the mining section that is the entire story. The records for Yukon and the Northwest Territories hold neither a mining Act nor a regulator that could be named from a retrieved page, which leaves federal assessment as the one layer this site describes for either of them. A transitional deeming rule is therefore not one change among several there. It is the whole of what the record shows changing, and Canadian Industry Online has nothing underneath it to check the rule against.