Environmental Assessment and Review Process (EARP) Guidelines Order

The following document is no longer in force. It was replaced in January 1995 by the Canadian Environmental Assessment Act

(Extract from the Canada Gazette Part 11 dated July 11 1984) CANADA

Registration

SOR/84-467 22 June, 1984

GOVERNMENT ORGANIZATION ACT, 1979

Environmental Assessment and Review Process Guidelines Order

P.C. 1984-2132 21 June, 1984

Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 6(2) of the Government Organization Act, 1979*, is pleased hereby to approve the annexed Guidelines respecting the implementation of the federal policy on environmental assessment and review, made by the Minister of the Environment on June 11. 1984.

GUIDELINES RESPECTING THE IMPLEMENTATION OF THE FEDERAL POLICY ON ENVIRONMENTAL ASSESSMENT AND REVIEW

Short Title

1. These Guidelines may be cited as the Environmental Assessment and Review Process Guidelines Order.

Interpretation

2. In these Guidelines,

"Environmental Impact Statement" means a documented assessment of the environmental consequences of any proposal expected to have significant environmental consequences that is prepared or procured by the proponent in accordance with guidelines established by a Panel; (JnoncJ des incidences environnementales)

"department" means, subject to sections 7 and 8.
(a) any department, board or agency of the Government of Canada, and
(b) any corporation listed in Schedule D to the Financial Administration Act and any regulatory body;
(ministPre)
initiating department" means any department that is, on behalf of the Government of Canada, the decision making authority for a proposal; (ministPre responsable) "Minister" means the Minister of the Environment; (MinistPre) "Office" means the Federal Environmental Assessment Review Office that is responsible directly to the Minister for the administration of the Process; (Bureau)

'Panel" means an Environmental Assessment Panel that conducts the public review of a proposal pursuant to section 21; (commission)
"Process" means the Environmental Assessment and Review Process administered by the Office; (processus)
'proponent" means the organization or the initiating department intending to undertake a proposal; (promoteur)
"proposal" includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility. (proposition)

Scope

3. The Process shall be a self assessment process under which the initiating department shall, as early in the planning process as possible and before irrevocable decisions are taken, ensure that the environmental implications of all proposals for which it is the decision making authority are fully considered and where the implications are significant, refer the proposal to the Minister for public review by a Panel.

4. (I) An initiating department shall include in its consideration of a proposal pursuant to section 3
(a) the potential environmental effects of the proposal and the social effects directly related to those environmental effects, including any effects that are external to Canadian territory; and
(b) the concerns of the public regarding the proposal and its potential environmental effects.

(2) Subject to the approval of the Minister and the Minister of the initiating department, consideration of a proposal may include such matters as the general socio-economic effects of the proposal and the technology assessment of and need for the proposal.

5. (l) Where a proposal is subject to environmental regulation, independently of the Process, duplication in terms of public reviews is to be avoided.

(2) For the purpose of avoiding the duplication referred to in subsection (1), the initiating department shall use a public review under the Process as a planning tool at the earliest stages of development of the proposal rather than as a regulatory mechanism and make the results of the public review available for use in any regulatory deliberations respecting the proposal .

Application

6. These Guidelines shall apply to any proposal
(a) that is to be undertaken directly by an initiating department;
(b) that may have an environmental effect on an area of federal responsibility;
(c) for which the Government of Canada makes a financial commitment; or
(d) that is located on lands, including the offshore, that are administered by the Government of Canada.

7. Where the decision making authority for a proposal is a corporation listed in Schedule D to the Financial/ Administration Act the Process shall apply to that proposal only if
(a) it is the corporate policy of that corporation to apply the Process; and
(b) the application of the Process to that proposal is within the legislative authority of that corporation.

8. Where a board or an agency of the Government of Canada or a regulatory body has a regulatory function in respect of a proposal, these Guidelines shall apply to that board, agency or body only if there is no legal impediment to or duplication resulting from the application of these Guidelines.

9. (1) Where, in respect of a proposal, there are two or more initiating departments, the initiating departments shall determine which of the responsibilities, duties and functions of an initiating department under these Guidelines shall apply to each of them.

(2) Where the initiating departments cannot under subsection (I) agree to a determination, the Office shall act as an arbitrator in the making of the determination.

INITIAL ASSESSMENT

Initiating Department

10.(1) Every initiating department shall ensure that each proposal for which it is the decision making authority shall be subject to an environmental screening or initial assessment to determine whether, and the extent to which, there may be any potentially adverse environmental effects from the proposal.

(2) Any decisions to be made as a result of the environmental screening or initial assessment referred to in subsection (I) shall be made by the initiating department and not delegated to any other body.

11. For the purposes of the environmental screening and initial assessment referred to in subsection 10(1), the initiating department shall develop, in cooperation with the Office,
(a) a list identifying the types of proposals that would not produce any adverse environmental effects and that would as a result, be automatically excluded from the Process; and
(b) a list identifying the types of proposals that would produce significant adverse environmental effects and that would be automatically referred to the Minister for public review by a Panel.

12. Every initiating department shall screen or assess each proposal for which it is the decision making authority to determine if
(a) the proposal is of a type identified by the list described under paragraph 11 (a), in which case the proposal may automatically proceed;
(b) the proposal is of a type identified by the list described under paragraph I I (b), in which case the proposal shall be referred to the Minister for public review by a Panel;
(c) the potentially adverse environmental effects that may be caused by the proposal are insignificant or mitigable with known technology, in which case the proposal may proceed or proceed with the mitigation, as the case may be;
(d) the potentially adverse environmental effects that may be caused by the proposal are unknown, in which case the proposal shall either require further study and subsequent rescreening or reassessment or be referred to the Minister for public review by a Panel;
(e) the potentially adverse environmental effects that may be caused by the proposal are significant, as determined in accordance with criteria developed by the Office in cooperation with the initiating department, in which case the proposal shall be referred to the Minister for public review by a Panel; or
(f) the potentially adverse environmental effects that may be caused by the proposal are unacceptable, in which case the proposal shall either be modified and subsequently rescreened or reassessed or be abandoned.

13. Notwithstanding the determination concerning a proposal made pursuant to section 12, if public concern about the proposal is such that a public review is desirable, the initiating department shall refer the proposal to the Minister for public review by a Panel.

14. Where, in any case, the initiating department determines that mitigation or compensation measures could prevent any of the potentially adverse environmental effects of a proposal from becoming significant, the initiating department shall ensure that such measures are implemented.

15. The initiating department shall ensure
(a) after a determination concerning a proposal has been made pursuant to section 12 or a referral concerning the proposal has been made pursuant to section 13, and
(b) before any mitigation or compensation measures are implemented pursuant to section 13, that the public have access to the information on and the opportunity to respond to the proposal in accordance with the spirit and principles of the Access to Information Act.

16. The initiating department, in consultation with the Office. shall establish written procedures to be followed in order to make a determination under section 12 and shall provide the Office on a regular basis, with information, on its implementation of the Process with respect to the proposals for which it is the decision making authority.

17. The initiating department shall
(a) ensure that federal-provincial, territorial and international agreements reflect the principles of the Process with respect to proposals for which it is the decision making authority; and
(b) include in its program forecasts and annual estimates of the resources necessary to carry out the Process with respect to proposals.

Federal Environmental Assessment Review Office

18. It is the responsibility of the Office to (a) provide initiating departments with procedural guidelines for the screening of proposals and to provide general assistance for the development and installation of implementation procedures;
(b) assist the initiating department in the provision of information on and the solicitation of public response to proposals early enough in the planning stage that irrevocable decisions will not be taken before public opinion is heard;
(c) publish in summary form the public information provided to the Office by an initiating department on proposals for which it is the decision making authority and for which a determination under section 12 has been made; and
(d) inform the Minister on a periodic basis, in a report to be made public, on the implementation of the Process by initiating departments.

Other Departments

19. It is the role of every department that has specialist knowledge or responsibilities relevant to a proposal to
(a) provide to the initiating department any available data, information or advice that the initiating department may request concerning
(i) any regulatory requirements related to the project, and
(ii) the environmental effects and the directly related social impact of those effects; and
(b) as appropriate, advocate the protection of the interests for which it is responsible.

Public Review

20. Where a determination concerning a proposal is made pursuant to paragraph 12(b), (d) or (e) or section 13, the initiating department shall refer the proposal to the Minister for public review.

21. The public review of a proposal under section 20 shall be conducted by an Environmental Assessment Panel, the members of which shall be appointed by the Minister.

22. The members of a Panel shall (a) be unbiased and free of any potential conflict of interest relative to the proposal under review; (b) be free of any political influence; and (c) have special knowledge and experience relevant to the anticipated technical, environmental and social effects of the proposal under review.

23. (1) The Executive Chairman of the Office or his delegate shall be the Chairman of a Panel unless, in the opinion of the Minister, the circumstances of a particular review deem it inappropriate.
(2) The Executive Chairman of the Office shall appoint the Executive Secretary of the Panel.

24. The Office shall provide a Panel with (a) any support staff that it may require; and
(b) any logistical and administrative services that it may require for its public review and for its public information program conducted pursuant to subsection 28(1).

25. (1) The public review of a proposal shall include
(a) an examination of the environmental effects of the proposal; and
(b) an examination of the directly related social impact of those effects.
(2) The examinations under paragraphs (I)(a) and (b) shall be conducted by the same Panel.
(3) Subject to the approval of the Minister and the Minister of the initiating department, the scope of the public review of a proposal may include such matters as the general socio-economic effects of the proposal and the technology assessment of and need for the proposal.

26. (1) The Minister, after consultation with the Minister responsible for the initiating department, shall issue the terms of reference outlining the scope of the public review to be undertaken by a Panel.
(2) The Office, in consultation with the initiating department, shall draft the terms of reference referred to in subsection (1).
(3) The terms of reference for a Panel shall be made available to the public.

27. (1) All hearings of a Panel shall be public hearings conducted in a non-judicial and informal but structured manner.
(2) A Panel shall establish, in accordance with procedural guidelines issued by the Office, its own detailed operating procedures.
(3) Witnesses before a Panel may be questioned but may not be sworn or subpoenaed.
(4) A Panel may question the relevancy and content of any information submitted to it.

28. (1) Every Panel shall conduct a public information program to advise the public of its review and to ensure that the
public has access to all relevant information that any member of the public may request.
(2) The public information program referred to in subsection (I) shall be in addition to any other public information program that may be conducted by a department or a proponent that is specifically relevant to the activities of that department or proponent.

29. (1) All information that is submitted to a Panel shall become public information. (2) A Panel shall allow the public access to and sufficient time to examine and comment on the information submitted to it prior to a public hearing.

30. (1) Guideline for the preparation of an Environmental Impact Statement may be issued by a Panel to the proponent in a public review.
(2) For the purpose of developing the guideline referred to in subsection (1), a Panel may consult the public and any department.

31. (1) At the end of its review, a Panel shall
(a) prepare a report containing its conclusions and recommendations for decisions by the appropriate Ministers; and
(b) transmit the report referred to in paragraph (a) to the Minister and the Minister responsible for the initiating department.
(2) The Minister and the Minister responsible for the initiating department shall make the report available to the public.

32. Any of the requirements or procedures set out in sections 21 to 31 may be varied by the Office in the case of any federal-provincial review or any review that involves special circumstances.

Initiating Department

33. (1) It is the responsibility of the initiating department in a public review to
(a) ensure that the responsibilities of the proponent in the review are fulfilled;
(b) ensure that its senior officials and staff make presentations and respond to any questions for which it has responsibility;
(c) subject to subsection (2), decide, in cooperation with any other department, agency or board of the Government of Canada to whom the recommendations of a Panel are directed, the extent to which the recommendations should become a requirement of the Government of Canada prior to authorizing the commencement of a proposal;
(d) subject to subsection (2), ensure, in cooperation with other bodies concerned with the proposal, that any decisions made by the appropriate Ministers as a result of the conclusions and recommendations reached by a Panel from the public review of a proposal are incorporated into the design, construction and operation of that proposal and that suitable implementation, inspection and environmental monitoring programs are established; and
(e) subject to subsection (2), determine in what manner the decisions made under paragraph (c) and those referred to in paragraph (d) are to be made public.

(2) Where the initiating department has a regulatory function in respect of the proposal under review, the responsibilities set out in paragraphs (I)(c), (d) and (e) shall be amended to account for and not to interfere with the decision making responsibilities of that initiating department.

Proponent

34. It is the responsibility of the proponent in a public review
(a) prepare, in accordance with any guideline established by the Panel pursuant to subsection 30(1), the Environmental Impact Statement and supporting documents;
(b) submit to a Panel, in such languages as are determined appropriate by the Panel, sufficient copies of the Statement and documents referred to in paragraph (a) as are required for the purposes of the public review;
(c) implement a public information program to explain the proposal under review and its potential environmental effects;
(d) in the event that the Panel identifies deficiencies in the Statement referred to in paragraph (a) provide sufficient copies as are required for the purposes of the public review, such additional information as may be requested by the Panel;
(e) ensure that senior officials and expert staff are present at public hearings of the Panel and that they make the appropriate presentations and respond to any questions put to them; and
(f) ensure that appropriate post-assessment monitoring, surveillance and reporting, as required by the initiating department are carried out.

The Federal Environment Assessment Review Office

35. It is the responsibility of the Office in a public review
(a) to draft for consideration by the Minister, in consultation with the initiating department, the terms of reference referred to in subsection 26(1);
(b) to identify persons as potential members of a Panel and to make contractual arrangements for their services;
(c) where appropriate, to negotiate provincial or territorial participation in a public review, federal participation in a provincial review, or any other participation in any other cooperative mechanisms; and
(d) provide written procedures, and any other advice and assistance on procedural and policy matters, to ensure that there is procedural and policy consistency between the various public reviews by Panels.

Other Departments

36. In a public review, it is the role of every department that has specialist knowledge or responsibilities relevant to a proposal to
(a) provide to the Panel and any other participants in the public review any available data, information or advice that is requested from them;
(b) provide experts at public hearings of the Panel to make presentations or to respond to questions; and
(c) where appropriate, advocate the protection of the interests for which they have responsibilities.

EXPLANATORY NOTE
(This note is not part of the Regulation but is intended only for information purposes.)

These Guidelines set out the requirements and procedures of the federal Environmental Assessment and Review Process and the responsibilities of the participants therein.
QUEEN'S PRINTER FOR CANADA, OTTAWA, 1984