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First Nations Oil And Gas Environmental Assessment Regulations (SOR/2007-272)

Regulations are current to 2024-03-06

Comprehensive Study Process (continued)

Comprehensive Study

Marginal note:Additional factors

 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.

Marginal note:Public participation

 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.

Marginal note:Scope of factors

 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.

Marginal note:Public notice

  •  (1) On receipt of a 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.

  • Marginal note:Public concerns

    (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.

Decision of the Decision-making Authority After Comprehensive Study

Marginal note:Time for decision

 A decision-making authority shall not make a decision under section 28 before the 30th day after the day on which the following are posted on the Internet site referred to in section 49:

  • (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 their scope, or an indication of how a copy of 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 a copy of it may be obtained.

Marginal note:Decision by decision-making authority — comprehensive study

  •  (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.

  • Marginal note: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.

Marginal note:Undertaking project, implementing mitigation measures

 If a decision-making authority makes a decision under paragraph 28(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 28(2)(a) are implemented and that a follow-up program is designed and implemented.

Marginal note:Prohibition

 If a decision-making authority makes a decision under paragraph 28(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.

Referral Power

Marginal note:Council referral to mediation or review panel

 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.

Mediation and Panel Review Processes

Referral

Marginal note:Initial referral to mediator or review panel

  •  (1) Subject to subsection (2), 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.

  • Marginal note:Subsequent referral to mediator

    (2) The council of the first nation may, at any time, refer any issue relating to an environmental 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.

Mediation

Definition of interested party

  •  (1) In this section and sections 34 to 38, 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.

  • Marginal note:Condition on referral to mediator

    (2) 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.

Marginal note:Appointment of mediator

  •  (1) If a project is referred to a mediator, the council of the first nation or any other person or body specified in an agreement for the joint assessment of the project referred to in paragraph 37(3)(a) of the Act shall, after consulting with all parties who are to participate in the mediation,

    • (a) appoint a mediator; and

    • (b) fix the terms of reference of the mediation.

  • Marginal note:Qualifications of mediator

    (2) Any person appointed as a mediator shall be unbiased and free from any conflict of interest relative to the project and have knowledge or experience in acting as a mediator.

Marginal note:Factors to be considered

  •  (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.

  • Marginal note:Scope of factors

    (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 or any other person or body specified in an agreement for the joint assessment of the project referred to in paragraph 37(3)(a) of the Act when fixing the terms of reference of the mediation.

Marginal note:Additional participants

 The mediator may, at any time, allow an additional interested party to participate in a mediation.

Marginal note:When mediation fails

 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.

Marginal note:Report

  •  (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.

  • Marginal note:Privilege

    (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.

Assessment by a Review Panel

Marginal note:Appointment of members of review panel

  •  (1) If a project is referred to a review panel, the council of the first nation or any other person or body specified in an agreement for the joint assessment of the project referred to in paragraph 37(3)(a) of the Act shall

    • (a) appoint members of the panel, including the chairperson; and

    • (b) fix the terms of reference of the panel.

  • Marginal note:Qualification of members

    (2) Any person appointed as a member of the panel shall be unbiased and free from any conflict of interest relative to the project and have knowledge or experience relevant to the anticipated environmental effects of the project.

Marginal note:Factors to be considered

  •  (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.

  • Marginal note:Scope of factors

    (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 or any other person or body specified in an agreement for the joint assessment of the project referred to in paragraph 37(3)(a) of the Act when fixing the terms of reference of the review panel.

Marginal note:Assessment by review panel

 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.

Marginal note:Powers of review panel

  •  (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 assessment of the project.

  • Marginal note:Enforcement powers

    (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.

  • Marginal note:Enforcement of summonses and orders

    (3) 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.

  • Marginal note:Hearings to be public

    (4) 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).

  • Marginal note:Non-disclosure save with consent

    (5) 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 whose disclosure 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 whose disclosure could reasonably be expected to interfere with contractual or other negotiations;

    • (e) information whose disclosure 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 whose disclosure would cause specific, direct and substantial harm to an individual.

  • Marginal note:Non-disclosure save with panel consent

    (6) 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 or record contains

    • (a) information whose disclosure would cause substantial harm to the environment; or

    • (b) information whose disclosure would result in the public becoming aware of aboriginal traditional knowledge that a first nation has always treated in a confidential manner.

  • Marginal note: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.

Decision of the Decision-making Authority After Mediation or Assessment by a Review Panel

Marginal note:Time for decision

 A decision-making authority shall not make any decision under subsection 44(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 posted on the Internet site referred to in section 49.

Marginal note:Decision of the decision-making authority — mediation or panel review

  •  (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.

  • Marginal note: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.

 

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