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

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.