Infrastructure planning doesn’t just involve engineers, architects, and policymakers—it would also need the expertise of legal experts, such as infrastructure lawyers. In this article, we’ll discuss some of the basics of infrastructure planning, along with the legal standpoint, starting from when the blueprints are drawn until the ribbons are cut.
What is infrastructure planning?
As widely understood, infrastructure planning refers to the preparation done before starting a project. Since infrastructures are done for the benefit of the public, infrastructure planning will have to consider the community they're supposed to serve.
The overall design may include:
- consultation with all stakeholders involved, such as local communities
- looking for investing agencies (either the government or private entities)
- planning the implementation and post-turnover phases of the project
- considering other legal requirements set by each jurisdiction
How does infrastructure planning work?
To narrow down on this very broad process, infrastructure planning is usually done along with the metrics or the specifics of:
-
the implementing body: when the plan is created to direct a body's infrastructure objectives and trajectory over time (e.g. when a city plans its infrastructure priorities)
-
the funding agency: when an implementing body submits a proposal to a funding agency to acquire investments for the implementor’s infrastructure plans (e.g. when a city proposes a project to the federal government)
See how infrastructure planning works with this video, as applied in the context of a local government, such as the Township of Langley:
To learn more about infrastructure planning and the laws related to it, reach out to the best infrastructure lawyers in Canada as ranked by Lexpert.
What are examples of infrastructure plans in Canada?
At the federal level, the government also does infrastructure planning. This involves developing the path of how the current government would go about its own infrastructure policies and how to implement them down to the provinces and territories.
In addition, it releases the national infrastructure plan when laws are passed and policies are decided. These plans are built from the public consultations and rigorous legal paperwork that the government agencies concerned do.
Canada’s infrastructure plan
In Canada, the legal considerations for infrastructure planning are set out by the federal government’s Investing in Canada Plan (ICP). Since the ICP has a lot of funding portfolio, the one that is specific to infrastructure would be the Investing in Canada Infrastructure Program (ICIP).
Infrastructure planning would depend on the specific investment stream of the ICIP. This applies when the following entities engage with the federal government on the funding or investment of their own infrastructure projects:
- provincial, territorial, and municipal governments
- private sector institutions, through a public-private partnership (PPP or 3P)
- Indigenous and Aboriginal groups
- not-for-profit institutions
Some of the frequently funded infrastructure projects are those that revolve around clean energy projects and sustainable infrastructure. This video shows how Vancouver’s Greenest City Action Plan, its very own infrastructure plan, was operationalized in the city:
Need help in crafting an infrastructure plan? Consult the Lexpert-ranked best infrastructure law firms in Canada.
What are the Canadian laws around infrastructure planning?
Infrastructure planning will touch on a lot of laws from the different levels of the government:
-
federal laws: dictates the general funding policy of infrastructure projects for local governments and other implementing groups
-
provincial or territorial laws: each may have its own infrastructure laws and policies, project priorities, and planning regulations
-
municipal laws: the by-laws of each municipality may also govern land use and zoning for their jurisdiction
In addition to these laws, there are also other legal practice areas that concern a project. We’ll discuss some of them below; but if you want to know more about these laws, you can easily reach out to a construction lawyer near you.
Contract law in infrastructure planning
Aside from infrastructure laws and industry regulations, infrastructure projects follow one important element in this legal relationship—the contracts. These pieces of paper are the law between the parties and must be complied with until the project is finished.
As such, the law on contracts would also apply when the project is being implemented and even in its interpretation when disputes arise. Of course, this is also one area where infrastructure lawyers come in.
Integrated Bilateral Agreements (IBAs)
For example, in infrastructure planning for ICIP projects, parties must consider the terms and conditions of their Integrated Bilateral Agreement (IBA). This is the contract entered by the implementing government (provincial or territorial) and the federal government, through the Housing, Infrastructure and Communities Canada (HICC).
Among other necessary terms and conditions of the agreement, the approved IBA will outline the following terms:
-
delivery of the infrastructure funding over a certain period, as agreed, or based on the project’s objectives
-
conduct the Climate Lens assessments on the project to check on their environmental outcomes
-
submission of reports that are related to the investment stream’s goals and other national targets
-
submission of multi-year plans, which will identify potential projects
Cost sharing on government infrastructure projects
Part of the legal consideration for infrastructure planning of a project to be submitted to the ICIP is the cost sharing scheme on the total cost of the infrastructure project. This scheme is between the applicant (the provincial or territorial government) and the federal government.
These are the cost sharing on federal fundings for the different ICIP investment streams on the following projects:
- up to 40%: with municipal and not-for-profit partners
- up to 50%: with provincial partners
- up to 75%: with Indigenous and territorial partners
- up to 25%: with for-profit private sector partners
Other costs not covered by federal funding would have to be shouldered by the implementing government. However, these federal fundings are subject to certain exceptions, which may be discussed during the infrastructure planning process.
Duty to consult and accommodate requirements
Canadian laws require that local and Indigenous communities be consulted before going through an infrastructure project. This applies not only when a project is privately funded, but most especially when it’s funded by the government. This duty to consult comes along with it the duty to accommodate, if necessary.
Under the law, this duty is triggered when a government’s decision or action might affect an Aboriginal or treaty right. This includes the funding of construction and infrastructure projects by the government.
Aside from the Constitutional guarantee of the duty to consult and accommodate, it has been the government’s policy to act on such duty whenever applicable. As such, infrastructure plans must consider the project’s possible impacts to the surrounding communities and consult them regarding these impacts.
Federal guidelines for the duty to consult and accommodate
For instance, infrastructure projects approved for funding under the ICIP must ensure that the duty to consult requirements are complied with.
To help the stakeholders during an infrastructure planning process, the guidelines by the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) would be helpful. This is especially true when the project involves funding from the federal government.
Called the “Guidelines for Federal Officials to Fulfill the Duty to Consult,” here is the summary of the preparatory stages, which are relevant for infrastructure planning:
- Identifying the potential adverse impacts of the infrastructure project
- Identifying the Aboriginal groups in the area that will potentially be affected
- Identifying the groups’ potential or established Aboriginal or treaty rights
- Initially determining if there is a duty to consult the Aboriginal group
- Designing the form and content of the consultation process
After these initial stages, the government concerned will have to implement its planned consultation process, in relation to its infrastructure plan.
Environmental laws applicable to infrastructure projects
Federal and provincial/territorial laws will branch out to infrastructure projects, affecting how they should be planned and implemented. Some federal laws to look at are the:
-
Impact Assessment Act (IAA): applies to designated projects, which require an impact assessment or a screening process, to prevent the projects' negative environmental, health, social, and economic impacts
-
Canadian Environmental Protection Act, 1999 (CEPA): depending on the infrastructure planned, the CEPA may apply on the project’s greenhouse gas emissions, toxic substances, and other pollutants
Not to mention that there are a lot of provincial and territorial environmental laws to expect.
The Climate Lens under the ICIP
To show how environmental considerations are important in Canadian infrastructure plans, the ICIP requires that a project meet the Climate Lens requirement.
It requires that infrastructure projects be assessed based on two criteria:
- what is the project’s possible greenhouse gas emissions
- how resilient is the project against climate change-related impacts
Even if HICC’s Climate Lens only applies to certain funding programs, similar mandatory environmental assessments may also be required on other programs.
Dispute resolution in infrastructure disputes
While a good infrastructure plan will be able to prevent future problems, a better one will be laying down the foundations on dispute resolution procedures. This is also related to the construction contract between the parties, which will contain the legal remedies appropriate for that particular dispute.
Alternative dispute resolution in construction
Regardless of whether it’s required by law or preferred by the parties, one method of resolving disputes in the construction and infrastructure industry is the alternative dispute resolution (ADR) methods.
These ADR methods include:
- negotiation
- adjudication
- mediation
- arbitration
While some jurisdictions may require parties to adjudicate their claims through these ADR methods before going to court, the safer way is to have this contractually stated. Although it will ensure compliance against the other party in the dispute, it’s still important that an infrastructure plan and the construction contract prescribe:
- which specific method should a party use against a specific dispute
- the timeliness of the procedure, such as deadlines to be followed
- how would costs be adjudicated, including liquidated damages, if any
Features of ADR in construction disputes
Parties in a construction contract tend to favour these ADR methods because of the following reasons:
-
confidentiality: when expressly mentioned in the contract, both parties, and even the neutral third-party, are bound by the ADR procedure’s confidentiality
-
expertise: parties may prefer dispute review boards and other bodies that have the expertise in deciding construction disputes, as compared to the courts
-
faster, cheaper: although both ADR methods and court litigation entail costs and time for the disputing parties, the ADR methods are still relatively faster and cheaper compared to litigation
Still, it’s important to be always in consultation with an infrastructure lawyer to know what legal course of action is proper in each situation.
Infrastructure planning: building on better projects
Infrastructure plans are drawn up from different expertise, including those from legal counsels. Lawyers can assist project proponents and funding agencies comply with different laws and regulations, as required for these construction and infrastructure projects.
More resources about infrastructure plans and other related topics on construction can be found in Lexpert’s Special Edition on Infrastructure Law.