First Nations Oil And Gas Environmental Assessment Regulations (SOR/2007-272)
Full Document:
Regulations are current to 2024-11-26
Screening Process (continued)
Decision of the Decision-making Authority After Screening (continued)
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.
- Date modified: