PART XIV

ENVIRONMENT

145. For environmental protection and conservation provisions of this Agreement, the definitions of "analyst", "environment" and "inspector" shall be as set out in the Canadian Environmental Protection Act.

146. "Environmental Emergency" means an uncontrolled, unplanned or accidental release, or a release in contravention of laws or regulations, of a substance into the environment, or the reasonable likelihood of such a release into the environment, that:

1. has or may have an immediate or long-term harmful effect on the environment;



2. constitutes, or may constitute, a danger to the environment on which humans depend; or



3. constitutes, or may constitute, a danger in Canada to human life or health.

147. "Pollution prevention" means the use of processes, practices, materials, products or energy that avoid or minimize the creation of pollutants and wastes and reduce the overall risk to the environment or human health.

Environmental Protection

148. Westbank First Nation has jurisdiction in relation to the protection and conservation of the environment on Westbank Lands.

149.

1. The laws and regulations created pursuant to section 148 shall be designed to be at least equivalent in standard to those set out under federal law and provincial laws of general application, including provisions for emergency measures, which could be enforced on Westbank Lands.



2. For greater certainty, subsection 149(a) is not intended to expand or increase the application of provincial laws on Westbank Lands or to impose provincial processes, structures or standards on Westbank Lands, where they would not be otherwise applicable.

150. In the event of a conflict between federal law in relation to the protection and conservation of the environment and Westbank Law enacted in accordance with any provisions of this Agreement, the federal law shall prevail to the extent of the conflict.

151. The Parties to this Agreement recognize that Canada and Westbank First Nation retain their respective authority and discretion to prosecute violations and otherwise enforce their respective environmental laws on Westbank Lands.

152. Until such time as the coming into force of any Westbank Law enacted pursuant to the jurisdiction referred to in section 148, paragraph 73(1)(k) of the Indian Act and any regulations made thereunder continue to apply.

153. Westbank First Nation may enter into agreements with Canada or other governments to enhance cooperation and coordination in the development and implementation of their respective environment functions on Westbank Lands.

154.

1. If the Party who has primary responsibility to respond to an Environmental Emergency does not respond or is unable to respond to an Environmental Emergency in a timely manner, the other Party may respond to the Environmental Emergency.



2. The responding Party will notify the Party with primary responsibility as soon as practicable of the Environmental Emergency, and of the measures taken by the responding Party to prevent, correct or respond to the Environmental Emergency.

Enforcement of Westbank Environment Laws

155. Westbank First Nation has jurisdiction to enforce Westbank Law enacted under this Part on Westbank Lands and the jurisdiction to create laws with powers and mechanisms comparable to but not greater than those available under federal environmental legislation. Government of Westbank First Nation enforcement officers shall have powers and authority at least comparable to but not greater than similar officers under federal environmental legislation.

156. Westbank First Nation environmental legislation and regulations may provide for enforcement measures and capacities including:

1. appointment of inspectors or other enforcement officers;



2. assignment of powers to inspectors including the following:



1. require that information be provided to them;
2. copy information and recover information electronically stored on computer systems or otherwise; and
3. such other powers as necessary to effectively enforce Westbank Law;


3. appointment of analysts;



4. assignment of powers to analysts when they are accompanied by an inspector including:



1. enter a place;
2. open receptacles and containers;
3. take samples and measurements; and
4. conduct tests;



5. for the purpose of inspection, the obligation of those who are subject to Westbank First Nation environmental laws to provide all reasonable assistance to enforcement officers and analysts who may accompany them;



6. subject to subsection 197(b), the setting of penalties and orders which a court of competent jurisdiction can impose for violations of Westbank First Nation environmental laws and regulations including:



1. monetary fines;
2. imprisonment;
3. payments to funds created to restore damaged environment or take other corrective measures, including clean-up or disposal of toxic or other substances;
4. orders to publish the facts of a violation or to notify, at the offender's cost, any person, company or government adversely affected by a violation of Westbank Law;
5. orders directing:
1. correction of the environmental damage;
2. community service;
3. payment of a performance bond;
4. prohibition of any activity that may result in continuation or repetition of the violation;
5. suspension of work on the project;
6. orders imposing negotiated settlements and other appropriate orders in situations of violation;



7. the establishment of capacities for the effective enforcement of such laws and regulations enacted under any of the authorities related to environmental protection and environmental assessment identified in this Agreement.

157. Westbank First Nation may set up mechanisms for it to apply to a court of competent jurisdiction for injunction orders consistent with those under federal legislation in relation to environment.

Environmental Assessment

158. For the environmental assessment provisions of this Agreement, the definitions of :

1. "environment", "environmental effect", "mediation" and "proponent" shall be as set out in the Canadian Environmental Assessment Act;
   
   
2. the definition of "project" shall be:



1. as set out in part (a) of the definition of "project" as set out in Canadian Environmental Assessment Act; or
2. any proposed physical activity not relating to a physical work that is prescribed or is within a class of physical activities that is prescribed pursuant to Westbank Law; and



3. "review panel" means a body established to hold public hearings in a manner that offers the public an opportunity to participate in the environmental assessment of the project.

159. Westbank First Nation has jurisdiction in relation to environmental assessment for projects on Westbank Lands.

160. Westbank Law in relation to environmental assessment shall provide for a determination of projects on Westbank Lands that are subject to an environmental assessment.

161. The Westbank First Nation environmental assessment process shall provide that projects subject to an environmental assessment, as determined under the laws and regulations created pursuant to section 159, cannot be authorized until such an environmental assessment has been conducted and the proper authorization has been obtained by the proponent.

162. Any laws and regulations created pursuant to section 159 establishing an environmental assessment process shall maintain or exceed the requirements of the Canadian Environmental Assessment Act.

163. For greater certainty, where the following requirements are contained in the Canadian Environmental Assessment Act, the Westbank First Nation environmental assessment process established pursuant to section 159 shall provide:

1. that the following factors are taken into consideration in the environmental assessment process:



1. the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out;
2. the significance of the environmental effects;
3. comments from the public received in accordance with Westbank First Nation environmental assessment laws;
4. measures that are technically and economically feasible and would mitigate any significant adverse environmental effects of the project; and
5. where projects are likely to have significant adverse environmental effects, provide for the consideration of the following additional factors:



1. the purpose of the project;
2. alternative means of carrying out the project that are technically feasible and the environmental effects of any such alternative means;
3. the need for, and the requirements of, any follow-up program in respect of the project; and
4. the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of the present and those of the future;



2. where appropriate, for public participation and public access to the environmental assessment information in the assessment of the project;



3. the opportunity for mediation or establishment of a review panel where a project is likely to have significant adverse environmental effects;



4. for a requirement that decision makers take the environmental assessment report, and, where applicable, the implementation of the mitigation measures into consideration prior to taking any action or making any decision that would enable the project to be carried out in whole or in part;



5. for any decision-making authority in relation to the project to ensure that the mitigation measures are implemented; and



6. for any other activities or principles that facilitate an effective and efficient assessment.

164. The Westbank First Nation environmental assessment process shall be structured to promote the implementation of the "proponent pays principle" which establishes that proponents are responsible for costs associated with the environmental assessment process including the preparation of the environmental assessment report, mitigation measures, follow-up programs and public consultation.

165. For greater certainty, any laws created under section 159 shall not diminish the federal government's ability to set and implement national standards, voluntary and regulatory, for environmental assessments.

166. In the event of a conflict between federal law in relation to environmental assessment and Westbank Law enacted in accordance with any provisions of this Agreement, the federal law shall prevail to the extent of the conflict.

167. Any person, body, commission or entity established by and accountable to Council to carry out the environmental assessment process may delegate any responsibility or authority, other than decision-making authority that would determine whether a project would be carried out or referred to a review panel, to another person, body, commission or entity.

168. Where there is an environmental assessment subject to a review panel pursuant to Westbank First Nation environmental assessment law, the review panel shall:

1. have the power to summon witnesses and compel them to give evidence and produce documents the review panel considers necessary for conducting its assessment of the project;



2. have the same power to enforce the attendance of witnesses and to compel them to give evidence and produce documents and other things as is vested in a court of record;



3. hold the review in public in whole, or to the extent necessary to protect the witness, in part, where a review panel is satisfied after representations made by a witness that specific, direct and substantial harm would be caused to the witness by the disclosure of the evidence, documents or other things that the witness is ordered to give or produce;



4. have any summons issued by the review panel pursuant to the power set out in subsection 168(a), for the purpose of enforcement, be made a summons of a court of competent jurisdiction by following the usual practice and procedure of that court;



5. not be subject to any legal action or other proceeding against it or a person on it for or in respect of anything done or omitted to be done, during the course of, and for the purposes of, the assessment by the review panel; and



6. have other powers and authority comparable to but not greater than similar bodies or panels under federal environmental assessment legislation.

169. Where a project is subject to the Westbank First Nation environmental assessment process, Council may, by order, prohibit the proponent from undertaking any work in advance of the completion of the environmental assessment pursuant to Westbank Law.

170. Canada and Westbank First Nation agree to negotiate and attempt to reach agreement on harmonizing their respective environmental assessment regimes and processes, with the involvement of the province where the province agrees to participate, to promote effective and consistent environmental assessment regimes and processes and to avoid uncertainty and duplication.

171. Where a project is subject to the Westbank First Nation environmental assessment process and that of the Canadian Environmental Assessment Act, Canada and Westbank First Nation shall, where possible, pursuant to any harmonization agreement resulting from section 170, implement the principle that the Westbank First Nation environmental assessment procedures and time periods relating to environmental assessment shall be used.

172.

1. Where Canada undertakes a public review pursuant to the Canadian Environmental Assessment Act for a project which is likely to have significant adverse environmental effects on Westbank Lands, Westbank First Nation shall be entitled to nominate a person to the panel.



2. Where a project is subject to the Canadian Environmental Assessment Act and is likely to have significant adverse environmental effects on Westbank Lands, Canada shall ensure that Westbank First Nation:
   
   
   1. receives timely notice of, and relevant information in Canada's possession on, the project and the potential environmental effects, subject to relevant privacy legislation; and
   2. is consulted and provided with an opportunity to participate in the environmental assessment applicable to the project.
   
   
3. Where Westbank First Nation undertakes a public review pursuant to its environmental assessment process for a project that is likely to have significant adverse environmental effects on other federal Crown land, Canada shall be entitled to nominate a person to the panel.



4. Where a project subject to the Westbank First Nation environmental assessment process is likely to have significant adverse environmental effects on other federal Crown lands, Westbank First Nation shall ensure that Canada:
   
   
   1. receives timely notice of, and relevant information in Westbank First Nation's possession on, the project and the potential environmental effects, subject to relevant privacy legislation; and
   2. is consulted and provided with an opportunity to participate in the environmental assessment applicable to the project.

173. In addition to section 170, for legislative bodies other than Canada and the province that have environmental assessment processes, Westbank First Nation shall consider harmonization of environmental assessment processes with the other legislative bodies.

174. Westbank First Nation shall enact laws establishing a Westbank First Nation environmental assessment process in accordance with this Part. These laws shall come into force within 12 months of the Effective Date.

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