Impact Assessment Act (S.C. 2019, c. 28, s. 1)

Marginal note:Terms of reference and appointment of members

• 41 (1) If the impact assessment of a designated project is referred to a review panel, the Minister must — within 45 days after the day on which the notice referred to in subsection 19(4) with respect to the designated project is posted on the Internet site — establish the panel’s terms of reference and the Agency must, within the same period, appoint as a member one or more persons who are unbiased and free from any conflict of interest relative to the designated project and who have knowledge or experience relevant to the designated project’s anticipated effects or have knowledge of the interests and concerns of the Indigenous peoples of Canada that are relevant to the assessment.

• Marginal note:Restriction

  (2) Subsection (1) is subject to the following sections:

  • (a) section 42;

  • (b) section 44;

  • (c) section 47.

Marginal note:Provisions of agreement

42 When there is an agreement or arrangement to jointly establish a review panel under subsection 39(1) or (3), or when there is a document jointly establishing a review panel under subsection 40(2), the agreement, arrangement or document must provide that the impact assessment of the designated project includes a consideration of the factors set out in subsection 22(1) and is conducted in accordance with any additional requirements and procedures set out in it and provide that

• (a) the Minister must — within 45 days after the day on which the notice referred to in subsection 19(4) with respect to the designated project is posted on the Internet site — establish or approve the review panel’s terms of reference, which are to include the time limit established under paragraph 37(1)(a);

• (b) the Minister may, at any time, modify the terms of reference in order to reflect an extension of the time limit granted under subsection 37(3) or (4);

• (c) the Agency must — within 45 days after the day on which the notice referred to in subsection 19(4) with respect to the designated project is posted on the Internet site — appoint the chairperson, or a co-chairperson, and at least one other member of the review panel; and

• (d) the members of the panel must be unbiased and free from any conflict of interest relative to the designated project and must have knowledge or experience relevant to the designated project’s anticipated effects or have knowledge of the interests and concerns of the Indigenous peoples of Canada that are relevant to the assessment.

Marginal note:Obligation to refer

43 The Minister must refer the impact assessment of a designated project to a review panel if the project includes physical activities that are regulated under any of the following Acts:

• (a) the Nuclear Safety and Control Act;

• (b) the Canadian Energy Regulator Act.

Marginal note:Agreement — referral under paragraph 43(a)

• 43.1 (1) The Minister may, when referring an impact assessment of a designated project to a review panel under paragraph 43(a), enter into an agreement or arrangement with respect to the impact assessment with the President of the Canadian Nuclear Safety Commission and any jurisdiction referred to in paragraphs (a) to (g) of the definition jurisdiction in section 2.

• Marginal note:Agreement — referral under paragraph 43(b)

  (2) The Minister may, when referring an impact assessment of a designated project to a review panel under paragraph 43(b), enter into an agreement or arrangement with respect to the impact assessment with the Lead Commissioner of the Canadian Energy Regulator and any jurisdiction referred to in paragraphs (a) to (g) of the definition jurisdiction in section 2.

Marginal note:Terms of reference — Nuclear Safety and Control Act

• 44 (1) When the Minister refers an impact assessment of a designated project that includes activities regulated under the Nuclear Safety and Control Act to a review panel, the Minister must — within 45 days after the day on which the notice referred to in subsection 19(4) with respect to the designated project is posted on the Internet site — establish the panel’s terms of reference in consultation with the President of the Canadian Nuclear Safety Commission and the Agency must, within the same period, appoint the chairperson and at least two other members.

• Marginal note:Appointment of members

  (2) The persons appointed to the review panel under subsection (1) must be unbiased and free from any conflict of interest relative to the designated project and must have knowledge or experience relevant to the designated project’s anticipated effects or have knowledge of the interests and concerns of the Indigenous peoples of Canada that are relevant to the assessment.

• Marginal note:Appointment from roster

  (3) At least one of the persons appointed under paragraph (1) must be appointed from a roster established under paragraph 50(b), on the recommendation of the President of the Canadian Nuclear Safety Commission.

• Marginal note:Not majority

  (4) The persons appointed from the roster must not constitute a majority of the members of the panel.

Marginal note:Impact assessment to be used

45 The impact assessment conducted by a review panel established under subsection 44(1) is the only assessment that the Canadian Nuclear Safety Commission may use for the purpose of issuing the licence referred to in the panel’s terms of reference.

Marginal note:Powers in relation to Nuclear Safety and Control Act

46 For the purpose of conducting an impact assessment of a designated project that includes activities regulated under the Nuclear Safety and Control Act, including preparing a report with respect to that impact assessment, the review panel may exercise the powers conferred on the Canadian Nuclear Safety Commission.

Marginal note:Terms of reference — Canadian Energy Regulator Act

• 47 (1) When the Minister refers an impact assessment of a designated project that includes activities regulated under the Canadian Energy Regulator Act to a review panel, the Minister must — within 45 days after the day on which the notice referred to in subsection 19(4) with respect to the designated project is posted on the Internet site — establish the panel’s terms of reference in consultation with the Lead Commissioner of the Canadian Energy Regulator and the Agency must, within the same period, appoint the chairperson and at least two other members.

• Marginal note:Appointment of members

  (2) The persons appointed to the review panel under subsection (1) must be unbiased and free from any conflict of interest relative to the designated project and must have knowledge or experience relevant to the designated project’s anticipated effects or have knowledge of the interests and concerns of the Indigenous peoples of Canada that are relevant to the assessment.

• Marginal note:Appointment from roster

  (3) At least one of the persons appointed under paragraph (1) must be appointed from a roster established under paragraph 50(c), on the recommendation of the Lead Commissioner of the Canadian Energy Regulator.

• Marginal note:Not majority

  (4) The persons appointed from the roster must not constitute a majority of the members of the panel.

Marginal note:Powers in relation to Canadian Energy Regulator Act

48 For the purpose of conducting an impact assessment of a designated project that includes activities regulated under the Canadian Energy Regulator Act, including preparing a report with respect to that impact assessment, the review panel may exercise the powers conferred on the Commission that is referred to in subsection 26(1) of that Act.

Marginal note:Summary and information

49 In establishing or approving a panel’s terms of reference, the Minister must consider, among other things, the summary of issues and the information or knowledge referred to in section 14.

Marginal note:Establishment of roster

• 50 (1) The Minister must establish the following rosters:

  • (a) a roster of persons who may be appointed as members of a review panel established under any of the following:

    • (i) section 41,

    • (ii) subsection 44(1),

    • (iii) subsection 47(1),

    • (iv) an agreement, arrangement or document referred to in section 42;

  • (b) a roster of persons who are members of the Canadian Nuclear Safety Commission and who may be appointed as members of a review panel established under subsection 44(1);

  • (c) a roster of persons who are commissioners under the Canadian Energy Regulator Act and who may be appointed as members of a review panel established under subsection 47(1).

• Marginal note:Establishment of roster — Nuclear Safety and Control Act

  (2) In establishing a roster under paragraph (1)(b), the Minister must consult with the Minister of Natural Resources or the member of the Queen’s Privy Council for Canada that the Governor in Council designates as the Minister for the purposes of the Nuclear Safety and Control Act.

• Marginal note:Establishment of roster — Canadian Energy Regulator Act

  (3) In establishing a roster under paragraph (1)(c), the Minister must consult with the member of the Queen’s Privy Council for Canada that the Governor in Council designates as the Minister for the purposes of the Canadian Energy Regulator Act.

Marginal note:Review panel’s duties

• 51 (1) A review panel must, in accordance with its terms of reference,

  • (a) conduct an impact assessment of the designated project;

  • (b) ensure that the information that it uses when conducting the impact assessment is made available to the public;

  • (c) hold hearings in a manner that offers the public an opportunity to participate meaningfully, in the manner that the review panel considers appropriate and within the time period that it specifies, in the impact assessment;

  • (d) prepare a report with respect to the impact assessment that

    • (i) sets out the effects that, in the opinion of the review panel, are likely to be caused by the carrying out of the designated project,

    • (ii) indicates which of the effects referred to in subparagraph (i) are adverse effects within federal jurisdiction and which are direct or incidental adverse effects and specifies, from among those adverse effects within federal jurisdiction and direct or incidental adverse effects, the ones that are likely to be, to some extent, significant and the extent to which they are significant,

    • (ii.1) subject to section 119, sets out how the review panel, in determining the effects that are likely to be caused by the carrying out of the designated project, took into account and used any Indigenous knowledge provided with respect to the designated project,

    • (iii) sets out a summary of any comments received from the public, and

    • (iv) sets out the review panel’s rationale, conclusions and recommendations, including conclusions and recommendations with respect to any mitigation measures and follow-up program;

  • (e) submit the report with respect to the impact assessment to the Minister; and

  • (f) on the Minister’s request, clarify any of the conclusions and recommendations set out in its report with respect to the impact assessment.

• Marginal note:Duties in relation to Nuclear Safety and Control Act

  (2) A review panel established under subsection 44(1) must, in accordance with its terms of reference, include in the report that it prepares the information necessary for the licence referred to in the panel’s terms of reference to be issued under section 24 of the Nuclear Safety and Control Act in relation to the designated project that is the subject of the report.

• Marginal note:Duties in relation to Canadian Energy Regulator Act

  (3) A review panel established under subsection 47(1) must, in accordance with its terms of reference, include in the report that it prepares the conclusions or recommendations necessary for a certificate, order, permit, licence or authorization to be issued, a leave or an exemption to be granted or a direction or approval to be given under the Canadian Energy Regulator Act in relation to the designated project that is the subject of the report.

Marginal note:Information

• 52 (1) A review panel may, when conducting the impact assessment of a designated project and preparing the report with respect to the impact assessment of the designated project, use any information that is available to it.

• Marginal note:Studies and collection of information

  (2) However, if the review panel is of the opinion that there is not sufficient information available for the purpose of conducting the impact assessment or preparing the report with respect to the impact assessment of the designated project, it may require the collection of any information or the undertaking of any study that, in the opinion of the review panel, is necessary for that purpose, including requiring the proponent to collect that information or undertake that study.

Marginal note:Power to summon witnesses

• 53 (1) A review panel has the power to summon any person to appear as a witness before it and to order the witness to

  • (a) give evidence, orally or in writing; and

  • (b) produce any records and other things that the panel considers necessary for conducting its impact assessment of the designated 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 and other things as is vested in a court of record.

• Marginal note:Hearings to be public

  (3) A hearing by a review panel must be public unless the panel is satisfied after representations made by a witness that specific, direct and substantial harm would be caused to the witness or specific harm would be caused to the environment by the disclosure of the evidence, records or other things that the witness is ordered to give or produce under subsection (1).

• Marginal note:Non-disclosure

  (4) If a review panel is satisfied that the disclosure of evidence, records or other things would cause specific, direct and substantial harm to a person or Indigenous group, the evidence, records or things are privileged and even if their disclosure is authorized under subsection 119(2) must not, without the authorization of the person or Indigenous group, knowingly be, or be permitted to be, disclosed by any person who has obtained the evidence, records or other things under this Act.

• Marginal note:Non-disclosure

  (5) If a review panel is satisfied that the disclosure of evidence, records or other things would cause specific harm to the environment, the evidence, records or things are privileged and must not, without the review panel’s authorization, knowingly be, or be permitted to be, disclosed by any person who has obtained the evidence, records or other things under this Act.

• Marginal note:Enforcement of summonses and orders

  (6) Any summons issued or order made by a review panel under subsection (1) must, for the purposes of enforcement, be made a summons or order of the Federal Court by following the usual practice and procedure.

• Marginal note:Immunity

  (7) No action or other proceeding lies 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 the review panel.