Canadian infrastructure investment: the legal aspects

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Canadian infrastructure investment: the legal aspects

The federal government of Canada’s infrastructure investments are laid out in the “Investing in Canada Plan”. 

Investing in Canada Plan (IICP) 

The Investing in Canada Plan (IICP) was launched in 2016 and aims to build numerous infrastructure projects over the next 12 years. Canada plans to do this by investing over C$180 billion into local projects such as transportation, communication, and social and cultural infrastructure. 

Projects already funded by the IICP include the rehabilitation of water and wastewater systems, improvements of cultural and recreational spaces, social infrastructure such as low-cost housing, and acquisition of transit vehicles for public transportation. 

Investments from the IICP are delivered through the programs managed by different federal government departments and agencies in coordination with the provincial, territorial, and municipal governments. They also work closely with the Indigenous Peoples and the Aboriginals. 

Objectives 

The IICP has three main objectives: 

Jobs and economic growth:  

The IICP aims to generate well-paying jobs, contributing to the growth of Canada’s economy and help establish stronger Canadian middle-class citizens. 

Sustainable and resilient communities:  

The IICP aims to support the creation of climate change-resilient communities in transitioning to a green economy or low-carbon economy. This is done by reducing greenhouse gas emissions, shifting energy grids to sustainable alternatives, and sustaining and cleaning Canada’s water sources. 

Inclusive and accessible infrastructure:  

Lastly, the IICP prioritizes inclusive and accessible infrastructure investment projects and communities. Along with Canada’s economic growth comes the responsibility to include the needs of all persons, especially those with disabilities. 

These objectives are also important in the considerations of what projects may be supported by the federal government through the IICP. 

What is the infrastructure program in Canada?  

The infrastructure investment program of Canada is carried out through the funding of IICP, specifically through the “Investing in Canada Infrastructure Program”. 

Investing in Canada Infrastructure Program 

Part of IICP’s overall budget is allocated for the Investing in Canada Infrastructure Program in the amount of C$33 billion. Infrastructure investment programs are implemented through bilateral agreements between Infrastructure Canada, the federal government’s agency tasked with overall implementation of the IICP, and the respective provinces, territories, and municipalities of Canada. 

Funding Application 

When a Canadian province, territory, or municipality has an infrastructure investment project that needs funding, it would have to submit an application to Infrastructure Canada, which will assess and approve the proposal.  

It takes up to 60 days for Infrastructure Canada to make a funding decision. However, if the funding application also needs the approval of the Treasury Board of Canada (e.g., infrastructure investments of more than C$50 million), a funding decision will take more than 60 days. 

For other legal aspects of a funding application under the Investing in Canada Infrastructure Program, consult with a lawyer located in your province. You can contact infrastructure lawyers in Ontario, Québec,  or British Columbia

Funding Streams 

Implementation of infrastructure investments in the provinces, territories, and municipalities is done through these targeted funding streams: 

  • Public Transit stream: for improvements of public transit infrastructure’s capacity, quality, safety, and accessibility; 
  • Green Infrastructure stream: for implementation of green infrastructure projects, in line with Canada’s goal of a low-carbon economy; 
  • Community, Culture and Recreation Infrastructure stream: for improvements of cultural infrastructure, community infrastructure, and recreational facilities; 
  • Rural and Northern Communities Infrastructure stream: for infrastructure investments of small, rural, and remote communities to improve food security, transportation, communication, energy sources, education, and health facilities; 
  • COVID-19 Resilience stream: for short-term infrastructure projects to address certain community problems brought by the COVID-19 pandemic. 

Bilateral Agreements 

Through the bilateral agreements between the provinces or territories and Infrastructure Canada, certain cost-sharing arrangements, climate change assessments, and community assessments will have to be implemented. 

When infrastructure investments are funded through the Investing in Canada Infrastructure Program’s bilateral agreements, applicant provinces or territories will have to bear some of the total cost of the project at a minimum of 33.33%. This percentage may increase depending on the maximum investment that the federal government is allowed to invest in the project: 

  • municipal and provincial not-for-profit projects: 40% 
  • provincial projects: 50% 
  • territorial projects and projects with Indigenous partners: 75% 
  • for-profit private sector projects: 25%  

There are certain exceptions: 

  • Infrastructure investment projects from the for-profit private sector do not qualify under the Community, Culture and Infrastructure Recreation Stream.  
  • Under the Public Transit stream, the federal government will provide a maximum of 50% of the project cost for rehabilitation projects and a maximum of 40% for new public transit construction and expansion projects (regardless of whether it is a municipal or provincial project). 
  • For infrastructure investment projects under the Rural and Northern Communities Infrastructure stream of provinces and municipalities with a population of 5,000 or less, the federal government will invest up to 50% for not-for-profit projects of municipalities and provinces and up to 60% for municipal infrastructure projects (even though both are capped at 40%). 

Assessments 

Certain assessments will be done by the appropriate government agency before an infrastructure investment is approved: 

  • Climate Lens assessment: to evaluate the projects’ possible environmental outcomes and their resiliency against climate change effects; 
  • Community Employment Benefits assessment: to rate the social impacts of infrastructure investment projects, such as the inclusivity of employment opportunities that the project may offer to vulnerable communities; 
  • Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) consultations: to ensure that the duty to consult affected Indigenous Peoples in communities is properly implemented for infrastructure investment projects that are approved for funding. 

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