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WWW.LEXPERT.CA | 2017/18 | LEXPERT 23 and comprises the phase in which the IAC will determine whether the project should be allowed to proceed. If there is consensus for the Project to proceed, the Commissioner then dras an order reflect- ing the consensus. If there are areas of non-consensus, a review panel will be appointed to hold a hearing on all issues of non-consensus and will make the decision. In particular, the Report recommends that the IAC should seek Indigenous consent and issue a public decision statement on whether the project provides an overall net benefit to Canada across the five pillars of sustainability for present and future generations. e test for determining whether a project is allowed to proceed will involve a project-specific "sustainability test" to "as- sess the impacts of the project across the five pillars of sustainability, based on the project-specific sustainability framework." 10 In addition, the adequacy of Indigenous consultation would be addressed in the Decision Phase. e report does not outline the steps that would be taken in the event that experts are unable to reach agreement. e Decision Phase will conclude with the issuance of a Decision State- ment allowing or rejecting the project. A Tiered Approach e Panel's research determined that a tiered approach would pro- vide a means of incorporating regional issues into the project approv- al process. According to the Report: "Regional IA can play a major role in managing cumulative im- pacts on matters of federal interest in an airshed, watershed or other regionally defined area. It may therefore play an important role in ad- dressing cumulative impacts on Indigenous communities and their ability to exercise their constitutionally-protected Aboriginal and treaty rights." 11 ere are five key objectives outlined for regional IA: 1. To streamline, inform and improve project IA; 2. To gather information about and improve management of cumulative impacts affecting the sustainability of matters of federal interest; 3. To inform federal decisions on future projects in the region; 4. To build trust and relationships with Indigenous Groups; and 5. To set a preferred direction and strategy for achieving sustainability in a region through the assessment of alternative development scenarios. 12 Although the current federal environmental assessment regime includes mechanisms for the assessment of federal initiatives and the undertaking of regional studies, partici- pants noted that these mechanisms are infrequently used and ineffective in achieving the desired result. e recommendations made by the Expert Panel could render strategic and regional IAs mandatory, in some cases. e Report provides some guidance on the process for com- pleting strategic and regional IAs; however, the work pro- posed is not a simple task and requires cooperation among several parties. e Report does not provide insight or recom- mendations to guide the coordination of parties, and while it mentions the efficiencies that come with a "linked hierarchy of tiered assessments" 13 it does not indicate when strategic and regional IAs would be available to inform project IAs. Conclusion: e recommendations set out in this Report, if implemented, could directly impact Canada's ability to attract new mineral investment and to move projects forward. ere were several additional changes outlined that, as a result of spatial constraint, remained outside of the scope of our assessment in this article. ese include recommenda- tions for the establishment of a new regulator and new assessment and decision-making processes. Some view the revised proposed pro- cess as a welcome change that will improve cooperation among pro- vincial and federal departments, help to restore public trust, and im- prove consultation of First Nations Groups. However, others point to the additional costs that will be incurred through the additional ex- perts and processes involved in the new IA, as well as the uncertainty that comes with any reviews and amendments to key environmental legislation, as potentially detrimental to investment in Canada's min- ing sector. Project proponents, particularly industry, must pay close attention to the federal government's response to the Panel's recom- mendations. e message remains that assessments will continue to be required for new projects. Christine Kowbel Lawson Lundell LLP ckowbel@lawsonlundell.com Ms. Kowbel is a partner at Lawson Lundell LLP practising environmental and aboriginal law, providing advice in respect of major project development, environmental assessment, permitting, operational matters and acquisition and sale of industrial projects. Karen MacMillan Lawson Lundell LLP kmacmillan@lawsonlundell.com Ms. MacMillan is a partner at Lawson Lundell LLP practising corporate and commercial law with an emphasis on commercial arrangements and asset-level acquisitions and dispositions in the mining sector. Khaled Abdel-Barr Lawson Lundell LLP kabdelbarr@lawsonlundell.com Mr. Abdel-Barr is a partner at Lawson Lundell LLP practising corporate commercial law and mining law with an emphasis on acquisitions and dispositions of mines and significant mining projects. 1 Expert Panel Report, Building Common Ground: A New Vision for Impact Assessment in Canada, https://www.canada. ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/ building-common-ground.html 2 Environmental and Regulatory Reviews: Discussion Paper https://www.canada.ca/content/dam/themes/environment/ conservation/environmental-reviews/share-your-views/proposed-approach/discussion-paper-june-2017-eng.pdf 3 Expert Panel Report, section 2.1.3. 4 Ibid, section 2.1.3. 5 In defining matters of federal interest, the Panel lists: "federal lands; federal funding; federal government as proponent; species at risk; fish; marine plants; migratory birds; Indigenous Peoples and lands; greenhouse gas emissions of national significance; watershed or airshed effects crossing provincial or national boundaries; navigation and shipping; aeronautics; activities crossing provincial or national boundaries and works related to those activities; or activities related to nuclear energy" (section 2.1.1). 6 Ibid, section 3.2.1 7 Ibid, section 3.4.1 8 Ibid, Executive Summary 9 Ibid, section 3.41 10 Ibid, section 3.2.2. 11 Ibid, section 3.5 12 Ibid. 13 Ibid, section 3.6

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