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Vol. 141, No. 21 — May 26, 2007
First Nations Oil and Gas Environmental Assessment Regulations
Statutory authority
First Nations Oil and Gas and Moneys Management Act
Sponsoring department
Department of Indian Affairs and Northern Development
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Description
The purpose of the First Nations Oil and Gas Environmental Assessment Regulations (the "Regulations") is to establish basic rules and procedures for conducting environmental assessments for oil and gas projects on reserve lands subject to the First Nations Oil and Gas and Moneys Management Act (FNOGMMA).
The Regulations were developed jointly by Indian and Northern Affairs Canada (INAC), the Canadian Environmental Assessment Agency (the Agency), and the Department of Justice. INAC's participation in the development of the Regulations included input from Indian Oil and Gas Canada (IOGC). In order to ensure a consistent approach to environmental assessment for First Nations in Canada, the environmental assessment provisions in the proposed Regulations are based on the Canadian Environmental Assessment Act (CEAA).
FNOGMMA
FNOGMMA came into force on April 1, 2006. It provides First Nations with the option of managing and regulating oil and gas exploration and exploitation on their reserve lands and/or receiving their capital and revenue moneys, otherwise held for their use and benefit by the Government of Canada.
Currently, oil and gas projects are subject to an environmental assessment process under the CEAA, administered (through IOGC) by INAC as the responsible authority. Under FNOGMMA, these Regulations would ensure that environmental assessments of oil and gas projects continue to be conducted in a similar fashion to those that have been conducted under the CEAA. This is necessary, since the regulations under the Indian Oil and Gas Act (IOGA) that triggered environmental assessments under the CEAA will no longer apply to oil and gas projects on the reserves of these First Nations once they have been added to Schedule 1 of FNOGMMA. On these reserves, CEAA will, however, continue to apply to all other federal decisions that currently require an environmental assessment (for example, decisions to fund projects or to issue certain regulatory approvals).
Subsection 63(1) of FNOGMMA provides the Governor in Council, on the recommendation of the Minister of Indian Affairs and Northern Development and the Minister of the Environment, with the authority to make regulations respecting the content of oil and gas laws made in relation to environmental assessments. Subsection 63(2) of FNOGMMA provides that the Governor in Council may make regulations authorizing a First Nation to exempt certain projects in its oil and gas laws. These regulations, which are made under both subsections 63(1) and 63(2) of FNOGMMA, only apply to First Nations who are added to Schedule 1 of FNOGMMA.
In accordance with subsection 37(1) of FNOGMMA, First Nations oil and gas laws must provide that no project be undertaken until an environmental assessment has been conducted unless a project has been exempted by a regulation passed under subsection 63(2) and is also exempted in the First Nation's oil and gas laws. In addition, subsection 37(2) requires that all First Nations oil and gas laws pertaining to environmental assessment must conform to these regulations.
The Regulations
The proposed Regulations are part of a new optional oil and gas regulatory framework established under the Act for projects on reserves. The Regulations would ensure that, if a First Nation chooses to manage and regulate its own oil and gas exploration and exploitation, the rigour of the federal environmental assessment process will be maintained because the Regulations are based on the CEAA process. The Regulations would also provide flexibility, within a certain scope, to enable the First Nations to add requirements to meet their own needs.
The proposed Regulations mirror the important aspects of CEAA but change the scope from a national level to a community level. For example, the provisions of CEAA pertaining to harbours and port authorities are not applicable at the First Nation community level and so these provisions have not been mirrored in the proposed Regulations. The proposed environmental assessment regulations would
require that environmental assessments be conducted as early as possible in the planning stages of the projects, to ensure that environmental impacts are considered in the decision-making process;
retain the types and stages of environmental assessment used in CEAA, specifically
screenings
comprehensive studies
panel reviews
mediation
specify the factors to be considered;
require the implementation of mitigation measures; and
enable public participation and access to environmental assessment documents.
Pursuant to the 2004 Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was conducted on the proposed Regulations. In consideration of the preliminary scan, it was concluded that there were no important environmental effects, positive or negative, likely to result from this initiative.
Alternatives
Subsection 63(1) of FNOGMMA stipulates that the Governor in Council may make regulations respecting the content of oil and gas laws made in relation to environmental assessments of oil and gas projects, and subsection 63(3) provides that the requirements of these regulations must be generally comparable with the requirements that are applicable in similar circumstances under CEAA. Subsection 37(2) of FNOGMMA requires First Nations oil and gas laws made in relation to environmental assessment to conform to any such regulations.
Therefore, since the Act does not provide for any method of ensuring consistent environmental assessments, except for regulation, alternatives were not considered.
Benefits and costs
The proposed approach would benefit the public and First Nations by providing a clear understanding of the procedure and requirements for environmental assessments and by ensuring a generally consistent approach to environmental assessment among First Nations listed in Schedule 1 of FNOGMMA. This approach would also be generally consistent with the approach applied by the federal government under CEAA. In addition, the Regulations would further facilitate the transfer of control of environmental assessment of oil and gas related projects to those First Nations who choose to exercise this option.
Since the approach to and requirements of environmental assessment would remain essentially the same, the Regulations would not be expected to add any large additional implementation costs or have any impact on business. Overall, the benefits associated with the Regulations are expected to far outweigh the costs associated with their implementation.
Consultation
A FNOGMMA Environmental Assessment Regulations Working Group was established to develop the Regulations. This group consisted of officials from INAC, IOGC (a special operating agency of INAC), the Department of Justice, and the Agency. CEAA served as the basis for developing principle-based regulations to govern the environmental assessment process to be followed by FNOGMMA First Nations. It was, however, necessary to tailor the Regulations to meet the requirements under FNOGMMA while remaining consistent with CEAA.
During the drafting exercise, the sponsoring First Nations had the opportunity to review the draft Regulations and provide their comments. There were no major concerns expressed. Since FNOGMMA stipulates that any environmental assessment regulations made under the Act shall be generally comparable to the CEAA, broader consultations were not undertaken.
The Regulations are pre-published in the Canada Gazette, Part I, for a period of 30 days in order to give the public (including all First Nations) an opportunity to express their concerns, if any.
Compliance and enforcement
The First Nations would be responsible for ensuring compliance with their environmental assessment law and enforcement of any mitigation or other measures required for an oil and gas project to proceed. Subsection 37(2) of FNOGMMA requires that First Nations oil and gas law conform to the Regulations. First Nations would not be added to Schedule 1 of FNOGMMA unless their oil and gas law is compliant with the Regulations.
Contacts
John Dempsey
Director
Indian Oil and Gas Canada
9911 Chiila Boulevard, Suite 100
Tsuu T'ina (Sarcee), Alberta T2W 6H6
Telephone: 403-292-5661
Fax: 403-292-4864
Email: Dempseyj@ainc-inac.gc.ca
Yves Lebuf
Director
Canadian Environmental Assessment Agency
Place Bell Canada
160 Elgin Street, 22nd Floor
Ottawa, Ontario K1A 0H3
Telephone: 613-957-0065
Fax: 613-948-1354
Email: yves.lebuf@ceaa-acee.gc.ca
PROPOSED REGULATORY TEXT
Notice is hereby given that the Governor in Council, pursuant to subsection 63(1) and paragraph 63(2)(b) of the First Nations Oil and Gas and Moneys Management Act (see footnote a), proposes to make the annexed First Nations Oil and Gas Environmental Assessment Regulations.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to John Dempsey, Director, Policy, Indian Oil and Gas Canada, Suite 100, 9911 Chiila Boulevard, Tsuu T'ina (Sarcee), Alberta T2W 6H6 (tel. : 403-292-5661; fax: 403-292-4864; e-mail: DempseyJ@inac-ainc.gc.ca).
Ottawa, May 17, 2007
MARY O'NEILL
Assistant Clerk of the Privy Council
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FIRST NATIONS OIL AND GAS ENVIRONMENTAL ASSESSMENT REGULATIONS |
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INTERPRETATION |
| Definitions |
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1. (1) The following definitions apply in these Regulations. |
"Act"
« Loi » |
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"Act" means the First Nations Oil and Gas and Moneys Management Act. |
"assessment by a review panel"
« examen
par une commission » |
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"assessment by a review panel" means an environmental assessment conducted in accordance with sections 37 to 40. |
"comprehensive study"
« étude approfondie » |
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"comprehensive study" means an environmental assessment conducted in accordance with sections 23 to 29. |
"follow-up program"
« programme de suivi » |
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"follow-up program", in respect of a project, means a program for
(a) verifying the accuracy of the project's environmental assessment; and
(b) determining the effectiveness of any measures taken to mitigate its adverse environmental effects. |
"mediation"
« médiation » |
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"mediation" means an environmental assessment conducted in accordance with sections 31 to 36. |
"mitigation measures"
« mesures d'atténuation » |
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"mitigation measures", in respect of a project, means the elimination, reduction or control of the adverse environmental effects of the project, and includes restitution for any damage to the environment caused by those effects through replacement, restoration, compensation or any other means. |
"proponent"
« promoteur » |
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"proponent", in respect of a project, means the
person, body or government that proposes the
project. |
"record"
« document » |
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"record" means any documentary material, regardless of medium or form. |
"registry"
« registre » |
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"registry", in respect of a first nation, means an environmental assessment registry established by the first nation under section 47. |
"screening"
« examen préalable » |
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"screening" means an environmental assessment conducted in accordance with sections 13 to 19. |
"test drilling"
« sondage » |
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"test drilling" means an evaluation well or test hole drilled for the primary purpose of determining subsurface lithology and obtaining geological or geophysical information. |
| Precautionary principle |
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(2) In the administration of a first nation's oil and gas law, the decision-making authority and the council of the first nation shall exercise their powers in a manner that protects the environment and human health and applies the precautionary principle. |
| Duty to consult if council not decision-making authority |
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(3) If the council of the first nation is not the
decision-making authority under the first nation's oil and gas law, the council of the first nation shall, before exercising any power referred to in paragraph 8(b), section 9 or 10, paragraph 11(1)(e), section 30, paragraph 32(a), subsection 33(2), paragraph 37(a) or subsection 38(2), consult with the decision-making authority, in addition to any other persons or bodies with whom it has a duty to consult under those provisions. |
| Content of oil and gas laws |
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2. For the purposes of subsection 63(1) of the Act, a first nation's oil and gas law made in relation to environmental assessment shall include the rules set out in sections 1, 3 and 5 to 52, with any adaptations of form and reference that will facilitate the incorporation of these rules into the first nation's oil and gas law. |
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EXPLORATION ACTIVITIES |
| Exploration activities |
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3. For the purpose of paragraph (b) of the definition "project" in subsection 2(1) of the Act, any proposed geophysical examination or test drilling is a project for the purposes of environmental assessments. |
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EXEMPTED PROJECTS |
| Exempted projects |
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4. A first nation may, in its oil and gas law, exempt from environmental assessment any class of project that relates to installations used for oil or gas exploration or exploitation that is set out in the Exclusion List Regulations, other than those listed in Schedules II and III to those Regulations. |
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GENERAL |
| Timing of assessment |
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5. If an environmental assessment of a project is required, the decision-making authority shall ensure that it is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made by the decision-making authority. |
| No power, etc., to be exercised until assessment is complete |
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6. A decision-making authority shall not permit a project, for which an environmental assessment is required, to proceed unless it makes a decision under paragraph 16(1)(a), 27(1)(a) or (b) or 42(1)(a) or (b). |
| Environmental assessment process |
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7. The environmental assessment process shall include, if applicable,
(a) a screening or comprehensive study and the preparation of a screening report or comprehensive study report;
(b) a mediation or assessment by a review panel and the preparation of a mediation report or review panel report; and
(c) the design and implementation of a follow-up program. |
| Scope of project |
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8. The scope of the project for which an environmental assessment is to be conducted shall be determined
(a) by the decision-making authority; or
(b) if the project is referred to a mediator or a review panel, by the council of the first nation. |
| Same assessment for related projects |
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9. For the purposes of conducting an environmental assessment in respect of two or more projects, the decision-making authority or, if at least one of the projects is referred to a mediator or a review panel, the council of the first nation may determine that the projects are so closely related that they can be considered to form a single project. |
| All proposed undertakings to be considered |
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10. If a project concerns an installation used for oil or gas exploration or exploitation, the environmental assessment shall be conducted for any construction, operation, modification, decommissioning, abandonment or other undertaking during the life-cycle of that installation that is proposed by the proponent as well as any construction, operation, modification, decommissioning, abandonment or other undertaking during the life-cycle of that installation that, in the opinion of the decision-making authority or, if the project is referred to a mediator or a review panel, of the council of the first nation, is likely to be carried out in relation to that installation. |
| Factors that must be considered |
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11. (1) Each environmental assessment of a project shall consider the following factors:
(a) 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 undertaken;
(b) the significance of those environmental
effects;
(c) any comments from the public that are received in accordance with the first nation's oil and gas law;
(d) technically and economically feasible measures that would mitigate any significant adverse environmental effects of the project; and
(e) any other matter relevant to a screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, whose consideration may be required by the decision-making authority or, except in the case of a screening, the council of the first nation. |
| Factors that may be considered |
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(2) The environmental assessment may also consider community knowledge and aboriginal traditional knowledge. |
| Source of information |
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12. Any available information may be used in conducting the screening or comprehensive study of a project but, if a decision-making authority is of the opinion that the information available is not adequate to enable it to make a decision, it shall ensure that any studies and information that it considers necessary for that purpose are undertaken or collected. |
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SCREENING |
| Screening |
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13. (1) The decision-making authority shall ensure that a screening of every project is conducted and a screening report is prepared. |
| Exceptions |
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(2) Subsection (1) does not apply to a project referred to in section 4 that the first nation has exempted under its oil and gas law or to a project set out in the schedule. |
| Scope of factors |
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(3) In respect of a screening, the scope of the factors to be considered under paragraphs 11(1)(a), (b) and (d) and subsection 11(2) shall be determined by the decision-making authority. |
| Public participation |
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14. If there are circumstances surrounding a project that would make the project of interest to the public, the decision-making authority
(a) shall, before providing the public with an
opportunity to examine and comment on the screening report, include on the Internet site referred to in section 47 a description of the scope of the project, the factors to be considered in the screening and their scope, or an indication of how the description may be obtained;
(b) shall, before making a decision under section 16, give the public an opportunity to examine and comment on the screening report and
any record relating to the project that has been included in the registry and shall give adequate notice of that opportunity; and
(c) may, at any stage of the screening, give the public any other opportunity to participate in and comment on the screening. |
| Time for decision |
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15. A decision-making authority shall not make any decision under subsection 16(1) before the
15th day after the day on which the following are included on the Internet site referred to in section 47:
(a) the notice of the commencement of the environmental assessment process;
(b) the description of the scope of the project; and
(c) if the decision-making authority gives the public an opportunity to examine and comment on the screening report and any record relating to the project that has been included in the registry, the description of the factors to be considered in the environmental assessment and of their scope, or an indication of how the description may be obtained. |
| Decision-making authority decision — screening |
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16. (1) After considering the screening report and any comments from the public and taking into account the implementation of any technically and economically feasible mitigation measures, the decision-making authority shall make one of the following decisions:
(a) the project is not likely to cause significant adverse environmental effects;
(b) the project is likely to cause significant adverse environmental effects that may be justified in the circumstances;
(c) the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances;
(d) it is uncertain that the project is likely to cause significant adverse environmental effects; or
(e) public concerns warrant a referral to a mediator or a review panel. |
| Mitigation measures — extent of authority |
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(2) The mitigation measures that may be taken into account are those measures
(a) whose implementation the decision-making authority can ensure; or
(b) that the decision-making authority is satisfied will be implemented by another person or body. |
| Undertaking project, implementing mitigation measures |
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17. If a decision-making authority makes a decision under paragraph 16(1)(a), it may exercise any power or perform any duty or function that would permit the project to be undertaken in whole or in part, and it shall ensure that any mitigation measures that it has taken into account and that are referred to in paragraph 16(2)(a) are implemented and that a follow-up program, if appropriate for the project, is designed and implemented. |
| Referral for mediation or review panel |
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18. If the decision-making authority makes a decision under paragraph 16(1)(b), (d) or (e), it shall refer the project to the council of the first nation, which shall refer it to either mediation or a review panel. |
| Prohibition |
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19. If a decision-making authority makes a decision under paragraph 16(1)(c), it shall not exercise any power or perform any duty or function that would permit the project to be undertaken in whole or in part. |
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COMPREHENSIVE STUDY PROCESS |
| Specific projects |
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20. Sections 21 to 28 apply to a project set out in the schedule. |
| Public consultation |
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21. (1) The decision-making authority shall ensure that there is public consultation in respect of
(a) the proposed scope of the project for the purposes of the environmental assessment;
(b) the factors proposed to be considered in the environmental assessment and their proposed scope; and
(c) the ability of a comprehensive study to address issues relating to the project. |
| Report and recommendation |
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(2) After the public consultation, as soon as the decision-making authority has sufficient information to do so, it shall, if the council of the first nation is not the decision-making authority,
(a) report to the council of the first nation in respect of
(i) the scope of the project,
(ii) the factors to be considered in the environmental assessment and their scope,
(iii) public concerns in relation to the project,
(iv) the potential of the project to cause adverse environmental effects, and
(v) the ability of a comprehensive study to address issues relating to the project; and
(b) recommend to the council of the first nation that it refer the project to
(i) the decision-making authority to ensure that a comprehensive study is conducted and that a comprehensive study report is prepared and provided to the council of the first nation, or
(ii) a mediator or review panel. |
Referral
of project |
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22. The council of the first nation — taking into account the report and recommendation of the
decision-making authority if the council of the first nation is not the decision-making authority, or taking into account the matters referred to in subparagraphs 21(2)(a)(i) to (v) if the council of the first nation is the decision-making authority and has sufficient information to do so — shall decide
(a) if the council of the first nation is not the
decision-making authority, to refer the project to the decision-making authority so that a comprehensive study is conducted and that a comprehensive study report is prepared and provided to the council of the first nation;
(b) if the council of the first nation is the
decision-making authority, to ensure that a comprehensive study is conducted and that a comprehensive study report is prepared; or
(c) to refer the project to a mediator or review panel. |
| Additional factors |
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23. In addition to the factors that shall be considered under subsection 11(1) and may be considered under subsection 11(2), each comprehensive study shall consider the following factors:
(a) the purpose of the project;
(b) alternative means of carrying out the project that are technically and economically feasible and the environmental effects of those alternative means;
(c) the requirements of the follow-up program for the project; and
(d) 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. |
| Public participation |
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24. If the council of the first nation has decided under paragraph 22(a) or (b) that a comprehensive study is to be conducted with respect to a project, the decision-making authority shall ensure that the public is provided with an opportunity, in addition to that provided under section 26, to participate in the comprehensive study. |
| Scope of factors |
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25. In respect of a comprehensive study, the scope of the factors to be considered under paragraphs 11(1)(a), (b) and (d), subsection 11(2) and paragraphs 23(b) to (d) shall be determined by the decision-making authority. |
| Public notice |
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26. (1) On receipt of the comprehensive study report, the decision-making authority shall publish, in an appropriate manner, a notice setting out the following information:
(a) the date on which the comprehensive study report will be available to the public;
(b) the place at which copies of the report may be obtained; and
(c) the deadline and address for filing comments on the conclusions and recommendations and any other aspect of the report. |
Public
concerns |
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(2) Before the deadline any person may file, at the address set out in the notice, comments relating to the conclusions and recommendations and any other aspect of the comprehensive study report. |
| Time for decision |
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(3) A decision-making authority shall not make a decision under section 27 before the 30th day after the day on which the following are included on the Internet site referred to in section 47:
(a) the notice of the commencement of the environmental assessment process;
(b) the description of the scope of the project;
(c) the notice of the decision of the council of the first nation under paragraph 22(a) or (b) to refer the project to the decision-making authority to ensure that a comprehensive study is conducted;
(d) the description of the factors to be considered in the environmental assessment and of their scope, or an indication of how the description may be obtained; and
(e) the comprehensive study report that is to be considered by the decision-making authority or a description of how it may be obtained. |
| Decision by decision-making authority — comprehensive study |
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27. (1) If the council of the first nation has decided under paragraph 22(a) or (b) that a comprehensive study is to be conducted with respect to a project, the decision-making authority shall, after considering the comprehensive study report and any comments filed in accordance with subsection 26(2) and taking into account the implementation of any technically and economically feasible mitigation measures, make one of the following decisions:
(a) the project is not likely to cause significant adverse environmental effects;
(b) the project is likely to cause significant adverse environmental effects that can be justified in the circumstances; or
(c) the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances. |
| Mitigation measures — extent of authority |
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(2) The mitigation measures that may be taken into account are those measures
(a) whose implementation the decision-making authority can ensure; or
(b) that the decision-making authority is satisfied will be implemented by another person or body. |
| Undertaking project, implementing mitigation measures |
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28. If a decision-making authority makes a decision under paragraph 27(1)(a) or (b), it may exercise any power or perform any duty or function that would permit the project to be undertaken in whole or in part, and it shall ensure that any mitigation measures that it has taken into account and that are referred to in paragraph 27(2)(a) are implemented and that a follow-up program is designed and implemented. |
| Prohibition |
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29. If a decision-making authority makes a decision under paragraph 27(1)(c), it shall not exercise any power or perform any duty or function that would permit the project to be undertaken in whole or in part. |
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REFERRAL POWER |
| Council referral to mediation or review panel |
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30. The council of the first nation may, at any time before a decision under section 16 or 22 is made, refer a project to a mediator or a review panel if the council of the first nation determines that
(a) taking into account the implementation of any technically and economically feasible mitigation measures, the project may cause significant adverse environmental effects; or
(b) public concerns warrant a referral to a mediator or a review panel. |
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MEDIATION AND PANEL REVIEW |
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MEDIATION |
| Definition of "interested party" |
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31. (1) In this section and in sections 32 to 36, the term "interested party" means any person or body having an interest in the outcome of an environmental assessment for a purpose that is neither frivolous nor vexatious. |
| Initial referral to mediator or review panel |
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(2) Subject to subsection (3), if a project is to be referred to a mediator or a review panel, the council of the first nation shall
(a) refer the environmental assessment relating to the project to a mediator or a review panel; or
(b) refer part of that assessment to a mediator and part of it to a review panel. |
| Condition on reference to mediator |
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(3) An environmental assessment or a part of one shall not be referred to a mediator unless the interested parties have been identified and are willing to participate in the mediation. |
| Subsequent reference to mediator |
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(4) The council of the first nation may, at any time, refer any issue relating to an assessment by a review panel to a mediator if the council of the first nation is of the opinion, after consulting with the review panel, that mediation is appropriate in respect of the issue. |
Appointment
of mediator |
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32. If a project is referred to a mediator, the council of the first nation shall, after consulting with all parties who are to participate in the mediation,
(a) appoint as mediator any person who is unbiased and free from any conflict of interest relative to the project and who has knowledge or experience in acting as a mediator; and
(b) fix the terms of reference of the mediation. |
| Factors to be considered |
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33. (1) In addition to the factors that shall be considered under subsection 11(1) and that may be considered under subsection 11(2), each mediation shall consider the factors set out in section 23. |
| Scope of factors |
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(2) In respect of a mediation, the scope of the factors set out in paragraphs 11(1)(a), (b) and (d), subsection 11(2) and paragraphs 23(b) to (d) shall be determined by the council of the first nation when fixing the terms of reference of the mediation. |
| Additional participants |
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34. The mediator may, at any time, allow an
additional interested party to participate in a
mediation. |
| When mediation fails |
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35. If, at any time after an environmental assessment or part of an environmental assessment of a project has been referred to a mediator, the council of the first nation or the mediator determines that the mediation is not likely to produce a result that is satisfactory to all the participants, the council of the first nation shall order the conclusion of the mediation and shall refer all outstanding issues to a review panel. |
| Report |
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36. (1) A mediator shall, at the conclusion of the mediation, prepare a report and submit it to the council of the first nation, and to the decision-making authority if the council of the first nation is not the decision-making authority. |
| Privilege |
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(2) No evidence of or relating to a statement made by a mediator or a participant to the mediation during the course of and for the purposes of the mediation is admissible without the consent of the mediator or participant, in any proceeding before a review panel, court, tribunal, body or person with jurisdiction to compel the production of evidence. |
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ASSESSMENT BY A REVIEW PANEL |
| Appointment of review panel |
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37. If a project is referred to a review panel, the council of the first nation shall
(a) appoint as members of the panel, including the chairperson, persons who are unbiased and free from any conflict of interest relative to the project and who have knowledge or experience relevant to the anticipated environmental effects of the project; and
(b) fix the terms of reference of the panel. |
| Factors to be considered |
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38. (1) In addition to the factors that shall be considered under subsection 11(1) and that may be considered under subsection 11(2), each assessment by a review panel shall consider the factors set out in section 23. |
| Scope of factors |
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(2) In respect of an assessment by a review panel, the scope of the factors set out in paragraphs 11(1)(a), (b) and (d), subsection 11(2) and paragraphs 23(b) to (d) shall be determined by the council of the first nation when fixing the terms of reference of the review panel. |
| Assessment by review panel |
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39. A review panel shall, within its terms of
reference,
(a) ensure that the information required for an assessment is obtained and made available to the public;
(b) hold hearings in a manner that offers the public an opportunity to participate in the assessment;
(c) prepare a report setting out the rationale, conclusions and recommendations of the panel relating to the environmental assessment of the project, including any mitigation measures and
follow-up program, and a summary of any comments received from the public; and
(d) submit the report to the council of the first nation, and to the decision-making authority if the council of the first nation is not the decision-making authority. |
| Powers of review panel |
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40. (1) A review panel has the power to summon any person to appear as a witness before the panel and to order the witness to
(a) give evidence, orally or in writing; and
(b) produce any record that the panel considers necessary for conducting its environmental assessment of the project. |
| Enforcement powers |
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(2) A review panel has the same power to enforce the attendance of witnesses and to compel them to give evidence and produce records as is vested in a court of record. |
| Hearings to be public |
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(3) A hearing by a review panel shall be public unless the panel is satisfied, after representations made by a witness, that specific, direct and substantial harm to the witness or specific harm to the environment would be caused by the disclosure of the evidence or record that the witness is ordered to give or produce under subsection (1). |
| Non-disclosure save with consent |
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(4) Evidence and records presented to a review panel are privileged and shall not, without the
authorization of the person, body or organization
to whom they relate, knowingly be disclosed or made available by any person who has obtained the evidence or record if the review panel is satisfied that the evidence or record contains
(a) trade secrets;
(b) financial, commercial, scientific or technical information that is confidential;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected prejudice the competitive position of, any person, body or organization;
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations;
(e) information the disclosure of which could reasonably be expected to threaten the safety of individuals;
(f) information where the benefit of non-disclosure clearly outweighs the public interest in disclosure; or
(g) information the disclosure of which would cause specific, direct and substantial harm to an individual. |
| Non-disclosure save with panel consent |
|
(5) Evidence and records presented to a review panel are privileged and shall not, without the authorization of the review panel, knowingly be disclosed or made available by any person who has obtained the evidence or record if the review panel is satisfied that the evidence record contains
(a) information the disclosure of which would cause specific, direct and substantial harm to the environment; or
(b) information the disclosure of which would result in the public becoming aware of aboriginal traditional knowledge that a first nation has always treated in a confidential manner. |
| Enforcement of summonses and orders |
|
(6) Any summons issued or order made by a review panel under subsection (1) shall, for the purposes of enforcement, be made a summons or order of the court of competent jurisdiction by following the usual practice and procedure. |
| Immunity |
|
(7) No action or other proceeding lies or shall be commenced against a member of a review panel for or in respect of anything done or omitted to be done during the course of and for the purposes of the assessment by a review panel. |
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|
DECISION OF THE DECISION-MAKING AUTHORITY AFTER MEDIATION OR ASSESSMENT BY A
REVIEW PANEL |
| Time for decision |
|
41. A decision-making authority shall not make any decision under subsection 42(1) before the
30th day after the day on which the report submitted by a mediator or a review panel or a summary of it has been included on the Internet site referred to in section 47. |
| Decision of the decision-making authority — mediation or panel review |
|
42. (1) The decision-making authority shall, after considering the report submitted by a mediator or a review panel and taking into account the implementation of any technically and economically feasible mitigation measures, make one of the following decisions:
(a) the project is not likely to cause significant adverse environmental effects;
(b) the project is likely to cause significant adverse environmental effects that can be justified in the circumstances; or
(c) the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances. |
| Mitigation measures — extent of authority |
|
(2) The mitigation measures that may be taken into account are those measures
(a) whose implementation the decision-making authority can ensure; or
(b) that the decision-making authority is satisfied will be implemented by another person or body. |
| Decision-making authority to ensure implementation of mitigation measures |
|
43. If a decision-making authority makes a decision under paragraph 42(1)(a) or (b), it may exercise any power or perform any duty or function that would permit the project to be undertaken in whole or in part, and it shall ensure that any mitigation measures that it has taken into account and that are referred to in paragraph 42(2)(a) are implemented and that a follow-up program is designed and
implemented. |
| Prohibition: proceeding with project |
|
44. If a decision-making authority makes a decision under paragraph 42(1)(c), it shall not exercise any power or perform any duty or function that would permit the project to be undertaken in whole or in part. |
| |
|
PREVIOUS ASSESSMENT |
| Use of previously conducted environmental assessment |
|
45. (1) If a proponent of a project proposes to undertake, in whole or in part, a project for which an environmental assessment was previously conducted, the decision-making authority shall use that assessment and the resulting report to the extent that their use is appropriate for the purpose of ensuring that a screening or comprehensive study is conducted and a screening report or comprehensive study report is prepared if
(a) the project did not proceed after the assessment was completed;
(b) in the case of a project that is in relation to an installation, the proponent proposes an undertaking in relation to that installation that is different from that proposed when the assessment was conducted; or
(c) the manner in which the project is to be
undertaken has subsequently changed. |
| Necessary adjustments |
|
(2) The decision-making authority shall ensure that any adjustments are made to the report that are necessary to take into account any significant changes in the environment and in the circumstances of the project and any significant new information relating to the environmental effects of the project. |
| |
|
TERMINATION OF ASSESSMENT |
Termination
by decision-making authority |
|
46. (1) If at any time a decision-making authority decides not to make any decision that would enable a project that has not been referred to mediation or assessment by a review panel to be undertaken, it may terminate the environmental assessment of the project. |
Termination
by council |
|
(2) If at any time a decision-making authority decides not to make any decision that would enable a project that has been referred to mediation or assessment by a review panel to be undertaken, the council of the first nation may terminate the environmental assessment of the project. |
| |
|
ENVIRONMENTAL ASSESSMENT
REGISTRY |
| |
|
ESTABLISHMENT OF REGISTRY |
| First nation's registry |
|
47. (1) For the purpose of facilitating convenient public access to records relating to environmental assessments and providing assessment notices in a timely manner, there shall be a public registry consisting of an Internet site and project files, which registry shall be established and maintained by the first nation. |
| Public notification |
|
(2) The first nation shall ensure that the public has been notified concerning the existence of the Internet site as soon as it is established. |
| Copy |
|
(3) The first nation shall ensure that a copy of any record included in the registry is provided in a timely manner on request. |
| |
|
INTERNET SITE |
| Contents of Internet site |
|
48. Subject to subsection 50(1), the decision-making authority or the council of the first nation, as the case may be, shall ensure that the Internet site includes
(a) within 14 days after the commencement of an environmental assessment process, notice of its commencement;
(b) a description of the scope of the project in relation to which an environmental assessment is to be conducted, as determined under section 8;
(c) notice of termination of an environmental assessment by a decision-making authority under subsection 46(1);
(d) notice of termination of an environmental assessment by the council of the first nation under subsection 46(2);
(e) any public notices that are issued by the
decision-making authority or the council of the first nation to request public input into an environmental assessment;
(f) notice of a decision of the council of the first nation under paragraph 22(a) or (b);
(g) when the decision-making authority, in accordance with section 14, gives the public an opportunity to participate in the screening of a project or when the council of the first nation, under paragraph 22(a) or (b), decides that a comprehensive study is to be conducted, a description of the factors to be considered in the environmental assessment and of their scope, or an indication of how the description may be obtained;
(h) the screening or comprehensive study report considered by a decision-making authority for the purpose of a decision under section 16 or 27 or a description of how a copy of the report may be obtained;
(i) notice of the referral of a project to a mediator or a review panel;
(j) the terms of reference of a mediation or review panel;
(k) any agreement under paragraph 37(3)(a) of the Act respecting the joint establishment of a review panel;
(l) if the council of the first nation has ordered the conclusion of a mediation under section 35, notice of the order;
(m) on receiving the report, the report of a mediator or review panel or a summary of the
report;
(n) the decision of a decision-making authority, made under section 16, 27 or 42 concerning the environmental effects of the project, and a statement of any mitigation measures whose implementation the decision-making authority took into account in making its decision;
(o) notice stating whether, in accordance with section 17, a follow-up program for the project is appropriate;
(p) a description summarizing any follow-up program and its results or an indication of how a full description of the program and its results may be obtained; and
(q) any other information that the decision-making authority or the council of the first nation, as the case may be, considers appropriate, including information in the form of a list of relevant documents, in which case a description of how they may be obtained shall be provided. |
| |
|
PROJECT FILES |
| Establishment and maintenance |
|
49. (1) In respect of every project for which an environmental assessment is conducted, a project file shall be established and maintained by the first nation beginning on the day on which the environmental assessment process commences and
(a) ending on the day on which any follow-up program in respect of the project is completed; or
(b) if there is no follow-up program, ending on the day on which the decision-making authority makes a decision under section 16, 27 or 42. |
| Contents of project file |
|
(2) Subject to subsection 50(1), a project file shall contain all records produced, collected or submitted with respect to the environmental assessment of the project, including
(a) all records included on the Internet site referred to in section 47;
(b) any report relating to the environmental
assessment;
(c) any comments filed by the public in relation to the environmental assessment;
(d) any records relating to the need for, design of or implementation of any follow-up program; and
(e) any documents requiring mitigation measures to be implemented. |
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|
DISCLOSURE OF INFORMATION |
| |
|
Registry Restrictions |
Categories of information that shall not
be made available |
|
50. (1) Subject to subsections (2) to (5), the first nation shall not deposit any record into the registry that contains
(a) trade secrets;
(b) financial, commercial, scientific or technical information that is confidential;
(c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, any person, body or organization;
(d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations;
(e) information the disclosure of which could reasonably be expected to threaten the safety of individuals;
(f) information that is subject to solicitor-client privilege;
(g) information the disclosure of which could reasonably be expected to result in the public becoming aware of aboriginal traditional knowledge that a first nation has always treated in a confidential manner; or
(h) information that was determined to be privileged by a review panel in accordance with section 40. |
| Severing information |
|
(2) The first nation shall deposit any part of a record that does not contain, and can reasonably be severed from any part that contains, information described in subsection (1). |
| Available record |
|
(3) A record or part of a record otherwise available to the public shall be included in the registry. |
| Deposit on consent |
|
(4) The first nation may deposit into the registry a record that contains information set out in any of paragraphs (1)(a) to (d), (f) and (g) if the person, body or organization to whom that information relates consents. |
| Public interest override |
|
(5) The first nation may deposit into the registry a record or part of a record that contains information set out in paragraph (1)(b), (c) or (d) if disclosure of the information it contains would be in the public interest as it relates to public health, public safety or protection of the environment, and the public interest clearly outweighs any financial loss, gain or prejudice to the competitive position of or interference with contractual or other negotiations of any person, body or organization. |
| |
|
Notice |
Notice of intention
to deposit |
|
51. (1) When the first nation intends to deposit in the registry a record or part of a record that contains or that the first nation has reason to believe might contain information referred to in any of paragraphs 50(1)(a) to (d), (f) and (g), the first nation shall, subject to subsection (2), if the person, body or organization to whom the information relates can reasonably be located, prior to the deposit of the record or part of a record, give written notice to the person, body or organization of the intention to deposit. |
Waiver
of notice requirement |
|
(2) Any person, body or organization to whom a notice is required to be given under subsection (1) in respect of an intention to deposit a record or part of a record may waive the requirement and, if the person, body or organization has consented to the deposit, shall be deemed to have waived the requirement. |
Content
of notice |
|
(3) The notice shall include
(a) a statement that the first nation giving the notice intends to deposit a record or part of a record that might contain information described in any of paragraphs 50(1)(a) to (d), (f) and (g);
(b) a description of the contents of the record or part of a record that, as the case may be, belong to, were supplied by or relate to the person, body or organization to whom the notice is given; and
(c) a statement that the person, body or organization may, within 20 days after the day on which the notice is given, make representations to the first nation as to why the record or part of a record should not be disclosed. |
| |
|
Representations of Persons, Bodies
or Organizations and Decision |
| Time for representations, decision |
|
52. (1) When a notice is given under section 51, the first nation shall
(a) within 20 days after the day on which the notice is given, give the person, body or organization to whom the notice was given the opportunity to make representations as to why the record or part of a record should not be deposited into the registry; and
(b) within 30 days after the day on which the notice is given, if the person, body or organization has been given an opportunity to make representations under paragraph (a), make a decision as to whether to deposit the record or part of a record and give written notice of the decision to the person, body or organization. |
| Form of representations |
|
(2) Representations made by a person, body or organization under paragraph (1)(a) shall be made in writing unless the first nation waives that requirement, in which case they may be made orally. |
| |
|
COMING INTO FORCE |
Coming
into force |
|
53. These Regulations come into force on the day on which they are registered. |
SCHEDULE
(Subsection 13(2) and section 20)
PROJECTS SUBJECT TO COMPREHENSIVE STUDY PROCESS
1. Construction, decommissioning or abandonment of a fossil fuel-fired electrical generating station with a production capacity of 200 MW or more
2. Expansion of a fossil fuel-fired electrical generating station that would result in an increase in production capacity of 50% or more and 200 MW or more
3. Construction of an electrical transmission line with a voltage of 345 kV or more that is 75 km or more in length on a right of way that has not already been developed for a power line, pipeline, railway line or road and that is not contiguous to, for its whole length, a right of way that has already been developed for a power line, pipeline, railway line or road
4. Construction of an oil and gas pipeline that is more than 75 km in length on a right of way that has not already been developed for a power line, pipeline, railway line or road and that is not contiguous to, for its whole length, a right of way that has already been developed for a power line, pipeline, railway line or road
5. Construction, decommissioning or abandonment of a facility for the extraction of 200 000 m3/year or more of ground water or an expansion of the facility that would result in an increase in production capacity of more than 35%
6. Construction, decommissioning or abandonment of
(a) a heavy oil or oil sands processing facility with an oil production capacity of more than 10 000 m3/d, or
(b) an oil sands mine with a bitumen production capacity of more than 10 000 m3/d
7. Expansion of a heavy oil or oil sands processing facility that would result in an increase in oil production capacity that would exceed 5 000 m3/d and that would raise the total oil production capacity to more than 10 000 m3/d
8. Construction, decommissioning or abandonment, or an expansion that would result in an increase in production capacity of more than 35%, of
(a) an oil refinery, including a heavy oil upgrader, with an input capacity of more than 10 000 m3/d,
(b) a sour gas processing facility with a sulphur inlet capacity of more than 2 000 t/d,
(c) a facility for the liquefaction, storage or regasification of liquefied natural gas, with a liquefied natural gas processing capacity of more than 3 000 t/d or a liquefied natural gas storage capacity of more than 50 000 t,
(d) a petroleum storage facility with a capacity of more than 500 000 m3, or
(e) a liquefied petroleum gas storage facility with a capacity of more than 100 000 m3.
[21-1-o]
Footnote a
S.C. 2005, c. 48
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