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

Interpretation

Marginal note:Definitions

• 1 (1) The following definitions apply in these Regulations.

  Act

  Act means the First Nations Oil and Gas and Moneys Management Act. (Loi)

  assessment by a review panel

  assessment by a review panel means an environmental assessment conducted in accordance with sections 40 to 42. (examen par une commission)

  comprehensive study

  comprehensive study means an environmental assessment conducted in accordance with sections 23 to 26. (étude approfondie)

  follow-up program

  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 the adverse environmental effects of the project. (programme de suivi)

  mediation

  mediation means an environmental assessment conducted with the assistance of a mediator in accordance with sections 35 to 38. (médiation)

  mitigation measures

  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. (mesures d’atténuation)

  proponent

  proponent, in respect of a project, means the person, body or government that proposes the project. (promoteur)

  record

  record means any documentary material, regardless of medium or form. (document)

  registry

  registry, in respect of a first nation, means a public registry established by the first nation under section 49. (registre)

  screening

  screening means an environmental assessment conducted in accordance with sections 13 and 14. (examen préalable)

  test drilling

  test drilling means an evaluation well or test hole drilled for the primary purpose of determining subsurface lithology and obtaining geological or geophysical information. (sondage)

• Marginal note:Precautionary principle

  (2) In the administration of a first nation’s oil and gas law made in relation to environmental assessment, 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.

• Marginal note:Duty to consult if council not decision-making authority

  (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 31, paragraph 34(1)(a), subsection 35(2), paragraph 39(1)(a) or subsection 40(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.

Marginal note:Content of oil and gas laws

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 54, with any adaptations of form and reference that will facilitate the incorporation of those rules into the first nation’s oil and gas law.

Exploration Activities

Marginal note:Exploration activities

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.

Exempted Projects

Marginal note:Exempted projects

4 A first nation may, in its oil and gas law, exempt from environmental assessment any class of project that is set out in the Exclusion List Regulations, 2007, other than those listed in Schedules 2 and 3 to those Regulations, that relates to installations used for oil or gas exploration or exploitation.

General

Marginal note:Timing of assessment

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.

Marginal note:No power, etc., to be exercised until assessment is complete

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), 28(1)(a) or (b) or 44(1)(a) or (b).

Marginal note:Environmental assessment process

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 an assessment by a review panel and the preparation of a mediation report or a review panel report; and

• (c) the design and implementation of a follow-up program.

Marginal note:Scope of project

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.

Marginal note:Same assessment for related projects

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.

Marginal note:All proposed undertakings to be considered

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.

Marginal note:Factors that must be considered

• 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.

• Marginal note:Factors that may be considered

  (2) The environmental assessment may also consider community knowledge and aboriginal traditional knowledge.

Marginal note:Source of information

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.

Screening Process

Screening

Marginal note:Screening

• 13 (1) The decision-making authority shall ensure that a screening of every project is conducted and a screening report is prepared.

• Marginal note:Exceptions

  (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.

• Marginal note:Scope of factors

  (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.

Marginal note:Public participation

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, post on the Internet site referred to in section 49 a description of the scope of the project and either a description of the factors to be considered in the screening and their scope, or an indication of how a copy of the description of those factors and their scope 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.

Decision of the Decision-making Authority After Screening

Marginal note:Time for decision

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 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; 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 their scope, or an indication of how a copy of the description may be obtained.

Marginal note:Decision-making authority decision — screening

• 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.

• 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

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.

Marginal note:Referral to mediator or to a review panel

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 a mediator or a review panel.

Marginal note:Prohibition

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.

Comprehensive Study Process

General

Marginal note:Specific projects

20 Sections 21 to 30 apply to a project set out in the schedule.

Marginal note:Public consultation

• 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.

• Marginal note:Report and recommendation

  (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 a review panel.

Marginal note:Referral of project

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 a review panel.

Comprehensive Study

Marginal note:Additional factors

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.

Marginal note:Public participation

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.

Marginal note:Scope of factors

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.

Marginal note:Public notice

• 26 (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

27 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

• 28 (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

29 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

30 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

31 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

• 32 (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

• 33 (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

• 34 (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

• 35 (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

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

Marginal note:When mediation fails

37 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

• 38 (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

• 39 (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

• 40 (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

41 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

• 42 (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

43 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

• 44 (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.

Marginal note:Decision-making authority to ensure implementation of mitigation measures

45 If a decision-making authority makes a decision under paragraph 44(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 44(2)(a) are implemented and that a follow-up program is designed and implemented.

Marginal note:Prohibition: proceeding with project

46 If a decision-making authority makes a decision under paragraph 44(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

Marginal note:Use of previously conducted environmental assessment

• 47 (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.

• Marginal note: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

Marginal note:Termination by decision-making authority

• 48 (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.

• Marginal note: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 a mediation or an 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

Marginal note:First nation’s registry

• 49 (1) For the purpose of facilitating convenient public access to records relating to environmental assessments and providing notice to the public 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.

• Marginal note: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.

• Marginal note: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

Marginal note:Contents of Internet site

50 Subject to subsection 52(1), the decision-making authority or the council of the first nation, as the case may be, shall ensure that the following are posted on the Internet site:

• (a) the notice of commencement of an environmental assessment process, within 14 days after its commencement;

• (b) the description of the scope of the project in relation to which an environmental assessment is to be conducted, as determined under section 8;

• (c) a notice of termination of an environmental assessment by a decision-making authority under subsection 48(1);

• (d) a notice of termination of an environmental assessment by the council of the first nation under subsection 48(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) the notice of the 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, 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;

• (h) the screening or comprehensive study report considered by a decision-making authority for the purpose of a decision under section 16 or 28 or an indication of how a copy of the report may be obtained;

• (i) a notice of the referral of a project to a mediator or a review panel;

• (j) the terms of reference of a mediation or a 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 37, a notice of the order;

• (m) the report of a mediator or a review panel or a summary of the report, on receiving the report;

• (n) the decision of a decision-making authority, made under section 16, 28 or 44, 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) a 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 an indication of how a copy of the documents may be obtained shall be provided.

Project Files

Marginal note:Establishment and maintenance

• 51 (1) In respect of every project for which an environmental assessment is conducted, the first nation shall establish and maintain a project file 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.

• Marginal note:Contents of project file

  (2) Subject to subsection 52(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 posted on the Internet site referred to in section 49;

  • (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.

Disclosure of Information

Registry Restrictions

Marginal note:Categories of information that shall not be made available

• 52 (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 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 that is subject to solicitor-client privilege;

  • (g) information whose disclosure would cause specific harm to the environment;

  • (h) information where the benefit of non-disclosure clearly outweighs the public interest in disclosure;

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

  • (j) information whose disclosure 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

  • (k) information that was determined to be privileged by a review panel in accordance with section 42.

• Marginal note: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 set out in subsection (1).

• Marginal note:Available record

  (3) A record or part of a record otherwise available to the public shall be included in the registry.

• Marginal note: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) and (f) if the person, body or organization to whom that information relates consents.

• Marginal note: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

Marginal note:Notice of intention to deposit

• 53 (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 set out in any of paragraphs 52(1)(a) to (d) and (f), the first nation shall, subject to subsection (2), if the person, body or organization to whom the information relates can reasonably be located, before the deposit of the record or part of a record, give written notice to the person, body or organization of the intention to deposit.

• Marginal note: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.

• Marginal note: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 set out in any of paragraphs 52(1)(a) to (d) and (f);

  • (b) a description of the contents of the record or part of the 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 the record should not be deposited.

Representations of Persons, Bodies or Organizations and Decision

Marginal note:Time for representations, decision

• 54 (1) When a notice is given under section 53, 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 the 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 the record and give written notice of the decision to the person, body or organization.

• Marginal note: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

Marginal note:Registration

55 These Regulations come into force on the day on which they are registered.