Regulatory Alignment for Multi-Modal Infrastructure Corridors

This paper discusses “Regulatory Alignment for Multi-Modal Infrastructure Corridors†in the context of the Canadian Northern Corridor Concept (CNC). In particular, the paper reviews whether there are any existing models “for regulatory oversight and approval for multi-modal corridors and the subsequent placement of infrastructure within†that might be appropriate in developing the CNC. The paper concludes that existing models do not include certain of the elements of the CNC Concept as it has evolved to date, nor could any of the models be applied within the framework of Canada’s jurisdictional realities that would govern the CNC. The paper identifies several questions that need to be addressed in order to advance the CNC Concept to a more fully-formed proposal, which would form the basis for further examination of the need for regulatory oversight and approval and the form that such oversight and approval might take. The paper also suggests a forum that might oversee this further work. The CNC Concept is a visionary and anticipatory concept that is not yet fully formed. It is evolving largely in the absence of identified, specific infrastructure proposals, which presents foundational challenges, not only in identifying the geographic location of corridors or pathways but also in identifying appropriate legal and regulatory frameworks. It is noted that most (if not all) existing infrastructure corridors, and associated planning and oversight regimes, have originated with specific projects and that some have been established ex post facto to oversee infrastructure that is already in place. It is also noted that some existing corridors that are described as “multimodal†are not, on closer examination, multi-modal in the sense in which the term is used in the CNC Concept. The paper identifies as a foundational question: “What exactly is the ‘Corridor’ and what is its legal status or nature?†Several terms are used in the CNC Concept, sometimes interchangeably and some inconsistently with others. Fundamentally, is the Corridor a legal entity and, if so, what is the nature of that entity, or is the Corridor an identified geographic area in which administrative arrangements promote cooperation and coordination among existing actors with established responsibilities for planning, approving and overseeing infrastructure projects? Is it a broader “new approach to infrastructure planning†that goes beyond establishing a corridor? It is noted in this context that Canada’s existing trade and transportation corridors are not distinct legal entities. Rather, they are described by Transport Canada as “systems†that exist and function primarily as a series of cooperative and coordinated arrangements among the relevant jurisdictions and their established regulatory agencies. It is an underlying fact that developing, implementing and overseeing the CNC will invoke the established authority of Canada’s constituent entities. The federal government, represented by Transport Canada, is on record that... [N]o single jurisdiction or firm can unilaterally address all of the interconnected issues that determine success of a gateway or trade corridor. This constitutional reality will have to be respected in developing a model for regulatory oversight and approval of the CNC. Constitutionally-guaranteed Indigenous rights may also come into play, depending on the nature and location of the Corridor. The paper briefly reviews several case studies. It identifies aspects of these cases that distinguish each from the CNC. Canada’s “Transportation 2030: A Strategic Plan for the Future of Transportation in Canada†is based on federal recognition that the transportation system is a “shared†federal-provincial responsibility. It is not a model for “regulatory oversight and approval of multi-modal corridors†as such. However, the plan encompasses matters that are both multi-jurisdictional and multi-modal and is helpful in illustrating how Canadian governments currently approach their responsibilities with respect to Canada’s existing trade and transportation corridors. Under the approach of “shared†federal-provincial responsibility, the provinces/territories cntinue to exercise primary jurisdiction with respect to infrastructure corridor matters (particularly the identification and establishment of such corridors), except for those forms of transportation that are explicitly under federal authority (specifically interprovincial works and undertakings, such as interprovincial and international pipelines). The federal government continues to exercise its exclusive jurisdiction with respect to interprovincial works and undertakings (such as interprovincial pipelines), including with respect to siting. The overall conclusion in the paper is that several of the characteristics of the CNC Concept are unique, particularly when compared to existing models. The paper therefore turns to the question of how a Canadian model might be developed. It recommends that the questions of establishing and overseeing the corridor, on the one hand, and, on the other hand, the subsequent approval of infrastructure within the corridor should be approached as being separate from, although related to, each other. It suggests the Council of Ministers Responsible for Transportation and Highway Safety may be an appropriate forum for advancing the CNC Concept towards a more fully-formed proposal. With respect to environmental assessment, the paper notes that initial responsibility for environmental assessment of infrastructure projects in Canada rests with the level of government that has the primary authority with respect to any specific project. However, many linear projects trigger aspects of both federal and provincial jurisdiction. The relevant legislation of both levels of government typically provides for the potential establishment of joint environmental assessments in such situations and could be invoked in appropriate cases with respect to projects located in the proposed CNC. Environmental assessment of the CNC itself, in the absence of any specific proposed project, might not be required under either current federal or provincial regimes (depending on the ultimate nature of the Corridor). The federal Impact Assessment Act, however, authorizes the Minister to appoint a committee to conduct a regional assessment of “the effects of existing or future physical activities...†The Minister may also appoint a committee to undertake a strategic assessment of any Government of Canada policy, plan or program – proposed or existing – that is relevant to conducting impact assessments or any issue that is relevant to conducting impact assessments of designated projects or of a class of designated projects. These processes may provide vehicles for undertaking environmental assessments of the establishment of the CNC in the absence of identified infrastructure projects proposed for the Corridor. The paper’s overall conclusion is that the CNC Concept needs to be advanced from concept to proposal before it is possible to design an appropriate model for regulatory oversight and approval of the Corridor and the subsequent placement of infrastructure within. Canada has a well-established cooperative and coordinated approach to the oversight of its existing trade and transportation corridors that, at the same time, respects established federal and provincial authority. It may be that a similar approach to establishing the CNC would be appropriate, based on administrative cooperation and coordination.