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Section 54 of the National Energy Board Act
Participation of interested party
28. If the carrying out of a designated project requires that a certificate be issued in accord-ance with an order made under section 54 of the National Energy Board Act, the responsible authority with respect to the designated project must ensure that any interested party is provided with an opportunity to participate in the environmental assessment of the designated project.
Recommendations in environmental assessment report
29. (1) If the carrying out of a designated project requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, the responsible authority with respect to the designated project must ensure that the report concerning the environmental assessment of the designated project sets out
(a) its recommendation with respect to the decision that may be made under paragraph 31(1)(a) in relation to the designated project, taking into account the implementation of any mitigation measures that it set out in the report; and
(b) its recommendation with respect to the follow-up program that is to be implemented in respect of the designated project.
Submission of report to Minister
(2) The responsible authority submits its report to the Minister within the meaning of section 2 of the National Energy Board Act at the same time as it submits the report referred to in subsection 52(1) of that Act.
Report is final and conclusive
(3) Subject to sections 30 and 31, the report with respect to the environmental assessment is final and conclusive.
Order to reconsider
30. (1) After the responsible authority with respect to a designated project has submitted its report with respect to the environmental assessment under section 29, the Governor in Council may, by order made under section 53 of the National Energy Board Act, refer any of the responsible authority’s recommendations set out in the report back to the responsible authority for reconsideration.
Factors and time limit
(2) The order may direct the responsible authority to conduct the reconsideration taking into account any factor specified in the order and it may specify a time limit within which the responsible authority must complete its recon­sideration.
Responsible authority’s obligation
(3) The responsible authority must, before the expiry of the time limit specified in the order, if one was specified, reconsider any recommendation specified in the order and prepare and submit to the Minister within the meaning of section 2 of the National Energy Board Act a report on its reconsideration.
Content of reconsideration report
(4) In the reconsideration report, the responsible authority must
(a) if the order refers to the recommendation referred to in paragraph 29(1)(a)
(i) confirm the recommendation or set out a different one with respect to the decision that may be made under paragraph 31(1)(a) in relation to the designated project, and
(ii) confirm, modify or replace the mitigation measures set out in the report with respect to the environmental assessment; and
(b) if the order refers to the recommendation referred to in paragraph 29(1)(b), confirm the recommendation or set out a different one with respect to the follow-up program that is to be implemented in respect of the designated project.
Report is final and conclusive
(5) Subject to section 31, the responsible authority reconsideration report is final and conclusive.
Reconsideration of report under this section
(6) After the responsible authority has submitted its report under subsection (3), the Governor in Council may, by order made under section 53 of the National Energy Board Act, refer any of the responsible authority’s recommendations set out in the report back to the responsible authority for reconsideration. If it does so, subsections (2) to (5) apply. However, in subparagraph (4)(a)(ii), the reference to the mitigation measures set out in the report with respect to the environmental assessment is to be read as a reference to the mitigation measures set out in the reconsideration report.
Governor in Council’s decision
31. (1) After the responsible authority with respect to a designated project has submitted its report with respect to the environmental assessment or its reconsideration report under section 29 or 30, the Governor in Council may, by order made under subsection 54(1) of the National Energy Board Act
(a) decide, taking into account the implementation of any mitigation measures specified in the report with respect to the environmental assessment or in the recon­sideration report, if there is one, that the designated project
(i) is not likely to cause significant adverse environmental effects,
(ii) is likely to cause significant adverse environmental effects that can be justified in the circumstances, or
(iii) is likely to cause significant adverse environmental effects that cannot be justified in the circumstances; and
(b) direct the responsible authority to issue a decision statement to the proponent of the designated project that
(i) informs the proponent of the decision made under paragraph (a) with respect to the designated project and,
(ii) if the decision is referred to in subparagraph (a)(i) or (ii), sets out conditions — which are the implementation of the mitigation measures and the follow-up program set out in the report with respect to the environmental assessment or the reconsideration report, if there is one — that must be complied with by the proponent in relation to the designated project.
Certain conditions subject to exercise of power or performance of duty or function
(2) The conditions that are included in the decision statement regarding the environmental effects referred to in subsection 5(2), that are directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority and that would permit the designated project to be carried out, in whole or in part, take effect only if the federal authority exercises the power or performs the duty or function.
Responsible authority’s obligation
(3) The responsible authority must issue to the proponent of the designated project the decision statement that is required in accordance with the order relating to the designated project within seven days after the day on which that order is made.
Posting of decision statement on Internet site
(4) The responsible authority must ensure that the decision statement is posted on the Internet site.
Decision statement considered part of certificate
(5) The decision statement issued in relation to the designated project under subsection (3) is considered to be a part of the certificate issued in accordance with the order made under section 54 of the National Energy Board Act in relation to the designated project.
Substitution
Minister’s obligation
32. (1) Subject to sections 33 and 34, if the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by the government of a province — or any agency or body that is established under an Act of the legislature of a province — that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project would be an appropriate substitute, the Minister must, on request of the province, approve the substitution of that process for an environmental assessment.
Minister’s power
(2) Subject to sections 33 and 34, if the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by any jurisdiction referred to in paragraph (e) or (f) of the definition “jurisdiction” in subsection 2(1) that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project would be an appropriate substitute, the Minister may approve the substitution of that process for the environmental assessment.
Manner of approval
(3) An approval must be in writing and may be given in respect of a designated project or a class of designated projects.
Posting of notice of approval on Internet site
(4) The Agency must post a notice of the approval on the Internet site.
Exceptions
33. The Minister must not approve the substitution of a process in relation to a designated project
(a) for which the responsible authority is referred to in paragraph 15(a) or (b); or
(b) in relation to which the environmental assessment has been referred by the Minister to a review panel under section 38.
Conditions
34. (1) The Minister may only approve a substitution if he or she is satisfied that
(a) the process to be substituted will include a consideration of the factors set out in subsection 19(1);
(b) the public will be given an opportunity to participate in the assessment;
(c) the public will have access to records in relation to the assessment to enable their meaningful participation;
(d) at the end of the assessment, a report will be submitted to the responsible authority;
(e) the report will be made available to the public; and
(f) any other conditions that the Minister establishes are or will be met.
Approval
(2) The Minister may also approve the substitution of a process that has already been completed for an environmental assessment if he or she is satisfied that the conditions under subsection (1) have been met.
Availability
(3) The conditions referred to in paragraph (1)(f) must be made available to the public.
Assessment considered in conformity
35. If the Minister approves the substitution of a process under section 32, the assessment that results from the substitution is considered to be an environmental assessment under this Act and to satisfy any requirements of this Act and the regulations in respect of an environmental assessment.
Responsible authority’s or Minister’s decision
36. After taking into account the report with respect to the environmental assessment of the designated project that is received by the responsible authority at the end of the assessment under the process authorized by section 32, the responsible authority or, when the Agency is the responsible authority, the Minister must make decisions under subsection 52(1).
Equivalent Assessment
Exemption
37. (1) When the Minister must, under subsection 32(1), on request, approve the substitution of a process that is followed by the government of a province or any agency or body that is established under an Act of the legislature of a province for an environmental assessment of a designated project, the Governor in Council may, by order and on the Minister’s recommendation, exempt the designated project from the application of this Act, if the Governor in Council is satisfied that
(a) after the completion of the assessment process, the government or the agency or body determines whether, taking into account the implementation of any mitigation meas-ures that it considers appropriate, the designated project is likely to cause significant adverse environmental effects;
(b) the government or the agency or body ensures the implementation of the mitigation measures that are taken into account in making the determination and the implementation of a follow-up program; and
(c) any other conditions that the Minister establishes are or will be met.
Availability
(2) The conditions referred to in paragraph (1)(c) must be made available to the public.
Posting of notice of order on Internet site
(3) The Agency must post a notice of any order made under subsection (1) on the Internet site.
Environmental Assessment by a Review Panel
General Rules
Referral to review panel
38. (1) Subject to subsection (6), within 60 days after the notice of the commencement of the environmental assessment of a designated project is posted on the Internet site, the Minister may, if he or she is of the opinion that it is in the public interest, refer the environmental assessment to a review panel.
Public interest
(2) The Minister’s determination regarding whether the referral of the environmental assessment of the designated project to a review panel is in the public interest must include a consideration of the following factors:
(a) whether the designated project may cause significant adverse environmental effects;
(b) public concerns related to the significant adverse environmental effects that the designated project may cause; and
(c) opportunities for cooperation with any jurisdiction that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project or any part of it.
Time limits
(3) If the Minister refers the environmental assessment of the designated project to a review panel, the Minister must establish the following time limits — which combined are not to exceed 24 months — within which
(a) the review panel is to be established after the referral;
(b) the review panel must submit the report with respect to the environmental assessment of the designated project to the Minister; and
(c) the Minister must, after receiving the review panel’s report, issue a decision statement under section 54 in relation to the designated project.
Modified time limits
(4) Subject to section 54, the Minister may, as required, modify those time limits.
Posting of notices on Internet site
(5) The Agency must post on the Internet site a notice of any decision made by the Minister to refer the environmental assessment of the designated project to a review panel, and a notice of any time limits that the Minister establishes in relation to the designated project and any changes that he or she may make to those time limits.
Exception
(6) The Minister must not refer to a review panel the environmental assessment of a designated project for which the responsible authority is referred to in paragraph 15(a) or (b).
Studies and collection of information
39. When the Minister refers the environmental assessment of a designated project to a review panel under section 38, the Agency may, from the day on which the referral is made and until the day on which the panel is established, require the proponent of the designated project to collect any information or undertake any studies that, in the opinion of the Agency, are necessary for the environmental assessment by the review panel.
Agreement to jointly establish review panel
40. (1) When the Minister refers the envi-ronmental assessment of a designated project to a review panel under section 38, he or she may enter into an agreement or arrangement with any jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) that has powers, duties or functions in relation to the assessment of the environmental effects of the designated project, respecting the joint establishment of a review panel and the manner in which the environmental assessment of the designated project is to be conducted by that panel.
Other jurisdiction
(2) When the Minister refers the environmental assessment of a designated project to a review panel under section 38, the Minister and the Minister of Foreign Affairs may enter into an agreement or arrangement with any jurisdiction referred to in paragraph (g) or (h) of the definition “jurisdiction” in subsection 2(1) that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project respecting the joint establishment of a review panel and the manner in which the environmental assessment of the designated project is to be conducted by that panel.
Posting on Internet site
(3) Any agreement or arrangement referred to in subsection (1) or (2) must be posted on the Internet site before the commencement of the hearings conducted by the jointly established review panel.
Mackenzie Valley Resource Management Act
41. (1) When a proposal is referred to the Minister under paragraph 130(1)(c) of the Mackenzie Valley Resource Management Act, the Minister must refer the proposal to a review panel.
Document establishing review panel
(2) When the Minister is required to refer the proposal to a review panel, he or she and the Mackenzie Valley Environmental Impact Review Board must, in writing, jointly establish a review panel and prescribe the manner of its examination of the impact of the proposal on the environment.
If no agreement
(3) Despite subsection (2), if, in respect of a proposal referred to in subsection 138.1(1) of the Mackenzie Valley Resource Management Act, no agreement is entered into under that subsection within the period fixed by the regulations referred to in subsection 138.1(4) of that Act, an assessment by a review panel of the proposal must be conducted.
Coordination with environmental impact review
(4) The Minister must to the extent possible ensure that any assessment of the proposal required by subsection (3) is coordinated with any environmental impact review of the pro­posal under the Mackenzie Valley Resource Management Act.
Consultations
(5) Before making decisions under section 47 in relation to the proposal referred to in subsection (4), the Minister must take into account any report concerning the proposal that is issued under subsection 134(2) of the Mackenzie Valley Resource Management Act and must consult the persons and bodies to whom the report is submitted or distributed under subsection 134(3) of that Act.
Posting on Internet site
(6) Any document establishing a review panel under subsection (2) must be posted on the Internet site before the commencement of the hearings conducted by the jointly established review panel.
Terms of reference and appointment of members
42. (1) Subject to subsection (2), if the environmental assessment of a designated project is referred to a review panel, the Minister must establish the panel’s terms of reference and 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 its anticipated environmental effects.
Provisions of agreement
(2) When there is an agreement or arrangement to jointly establish a review panel under subsection 40(1) or (2), or when there is a document jointly establishing a review panel under subsection 41(2), the agreement, arrangement or document must provide that the environmental assessment of the designated project includes a consideration of the factors set out in subsection 19(1) and is conducted in accordance with any additional requirements and procedures set out in it and provide that
(a) the Minister must establish — or approve — the review panel’s terms of reference;
(b) subject to section 54, the Minister establishes or approves the period within which the panel must submit its report with respect to the environmental assessment of the designated project and may, at any time, modify the terms of reference in order to extend the period;
(c) the Minister must appoint — or approve the appointment of — the chairperson or appoint a co-chairperson and must appoint at least one other member of the review panel; and
(d) the members of the panel are to be unbiased and free from any conflict of interest relative to the designated project and are to have knowledge or experience relevant to its anticipated environmental effects.
Establishment of roster
(3) The Minister must establish a roster of persons who may be appointed as members of a review panel established under subsection (1) or under an agreement, arrangement or document referred to in subsection (2).
Review panel’s duties
43. (1) A review panel must, in accordance with its terms of reference,
(a) conduct an environmental assessment of the designated project;
(b) ensure that the information that it uses when conducting the environmental assessment is made available to the public;
(c) hold hearings in a manner that offers any interested party an opportunity to participate in the environmental assessment;
(d) prepare a report with respect to the environmental assessment that sets out
(i) the review panel’s rationale, conclusions and recommendations, including any mitigation measures and follow-up program, and
(ii) a summary of any comments received from the public, including interested parties;
(e) submit the report with respect to the environmental 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 environmental assessment.
Time limit
(2) Subject to section 54, when a review panel is not jointly established under an agreement, arrangement or document referred to in subsection 42(2), the Minister must, in the terms of reference, set out the period within which the panel must submit the report with respect to the environmental assessment of the designated project to the Minister and may, at any time, modify the terms of reference in order to extend the period.
Information
44. (1) A review panel may, when conducting the environmental assessment of a designated project and preparing the report with respect to the environmental assessment of the designated project, use any information that is available to it.
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 environmental assessment or preparing the report with respect to the environmental 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.
Power to summon witnesses
45. (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 things that the panel considers necessary for conducting its environmental assessment of the designated project.
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.
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).
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 witness, the evidence, records or things are privileged and must not, without the witness’s authorization, knowingly be or be permitted to be communicated, disclosed or made available by any person who has obtained the evidence, records or other things under this Act.
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 communicated, disclosed or made available by any person who has obtained the evidence, records or other things under this Act.
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.
Immunity
(7) No action or other proceeding lies or is to 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 the review panel.
Public notice
46. On receiving a report with respect to the environmental assessment of the designated project by a review panel, the Minister must make the report available to the public in any manner he or she considers appropriate to facilitate public access to the report, and must advise the public that it is available.
Minister’s decisions
47. (1) The Minister, after taking into account the review panel’s report with respect to the environmental assessment, must make decisions under subsection 52(1).
Studies and collection of information
(2) The Minister may, before making decisions referred to in subsection 52(1), require the proponent of the designated project to collect any information or undertake any studies that, in the opinion of the Minister, are necessary for the Minister to make decisions.
Excluded periods
48. If the Agency, the review panel or the Minister, under section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of a designated project to collect information or undertake a study with respect to the designated project, then
(a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under section 39 is not included in the calculation of the period referred to in paragraph 38(3)(a);
(b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2) is not included in the calculation of the period referred to in paragraph 38(3)(b) or 42(2)(b) or subsection 43(2); and
(c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2) is not included in the calculation of the period referred to in paragraph 38(3)(c).
Rules in Case of Termination
Termination
49. (1) The Minister must terminate the assessment by a review panel of a designated project if the review panel fails to submit its report within the specified period including any extension of time limits.
Power to terminate
(2) The Minister may terminate the assessment by a review panel of a designated project if he or she is of the opinion that the review panel will not be able to submit its report within the specified period including any extension of time limits.
Preliminary consultations
(3) However, before the Minister exercises the power referred to in subsection (2) with respect to a review panel that is jointly established under one of the following agreements, arrangements or documents, he or she must
(a) in the case of an agreement or arrangement referred to in subsection 40(1), consult the jurisdiction with which the agreement or arrangement was entered into;
(b) in the case of an agreement or arrangement referred to in subsection 40(2), obtain the approval of the Minister of Foreign Affairs and consult the jurisdiction with which the agreement or arrangement was entered into; and
(c) in the case of a document referred to in subsection 41(2), consult the Mackenzie Valley Environmental Impact Review Board.
Completion of environmental assessment by Agency
50. When the assessment by a review panel of a designated project is terminated under section 49, the Agency must, in accordance with directives provided by the Minister, complete the environmental assessment of the designated project and prepare a report and submit it to the Minister.
Minister’s decisions
51. The Minister, after taking into account the report with respect to the environmental assessment of the designated project that was submitted by the Agency, must make decisions under subsection 52(1).
Decision Making
Decisions of decision maker
52. (1) For the purposes of sections 27, 36, 47 and 51, the decision maker referred to in those sections must decide if, taking into account the implementation of any mitigation measures that the decision maker considers appropriate, the designated project
(a) is likely to cause significant adverse environmental effects referred to in subsection 5(1); and
(b) is likely to cause significant adverse environmental effects referred to in subsection 5(2).
Referral if significant adverse environmental effects
(2) If the decision maker decides that the designated project is likely to cause significant adverse environmental effects referred to in subsection 5(1) or (2), the decision maker must refer to the Governor in Council the matter of whether those effects are justified in the circumstances.
Referral through Minister
(3) If the decision maker is a responsible authority referred to in any of paragraphs 15(a) to (c), the referral to the Governor in Council is made through the Minister responsible before Parliament for the responsible authority.
Governor in Council’s decision
(4) When a matter has been referred to the Governor in Council, the Governor in Council may decide
(a) that the significant adverse environmental effects that the designated project is likely to cause are justified in the circumstances; or
(b) that the significant adverse environmental effects that the designated project is likely to cause are not justified in the circumstances.
Conditions — environmental effects referred to in subsection 5(1)
53. (1) If the decision maker decides under paragraph 52(1)(a) that the designated project is not likely to cause significant adverse environmental effects referred to in subsection 5(1), or the Governor in Council decides under paragraph 52(4)(a) that the significant adverse environmental effects referred to in that subsection that the designated project is likely to cause are justified in the circumstances, the decision maker must establish the conditions in relation to the environmental effects referred to in that subsection with which the proponent of the designated project must comply.
Conditions — environmental effects referred to in subsection 5(2)
(2) If the decision maker decides under paragraph 52(1)(b) that the designated project is not likely to cause significant adverse environmental effects referred to in subsection 5(2), or the Governor in Council decides under paragraph 52(4)(a) that the significant adverse environmental effects referred to in that subsection that the designated project is likely to cause are justified in the circumstances, the decision maker must establish the conditions — that are directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority that would permit a designated project to be carried out, in whole or in part — in relation to the environmental effects referred to in that subsection with which the proponent of the designated project must comply.
Conditions subject to exercise of power or performance of duty or function
(3) The conditions referred to in subsection (2) take effect only if the federal authority exercises the power or performs the duty or function.
Mitigation measures and follow-up program
(4) The conditions referred to in subsections (1) and (2) are
(a) the implementation of the mitigation measures that were taken into account in making the decisions under subsection 52(1); and
(b) the implementation of a follow-up program.
Decision Statement
Decision statement issued to proponent
54. (1) The decision maker must issue a decision statement to the proponent of a designated project that
(a) informs the proponent of the designated project of the decisions made under paragraphs 52(1)(a) and (b) in relation to the designated project and, if a matter was referred to the Governor in Council, of the decision made under subsection 52(4) in relation to the designated project; and
(b) includes any conditions that are established under section 53 in relation to the designated project and that must be complied with by the proponent.
Time limit of decision statement
(2) When the decision maker has made a decision under paragraphs 52(1)(a) and (b) in relation to the designated project for the purpose of section 47, the decision maker must issue the decision statement no later than 24 months after the day on which the environmental assessment of the designated project was referred to a review panel under section 38.
Extension of time limit by Minister
(3) The decision maker may extend that time limit by any further period – up to a maximum of three months – that is necessary to permit cooperation with any jurisdiction with respect to the environmental assessment of the designated project or to take into account circumstances that are specific to the project.
Extension of time limit by Governor in Council
(4) The Governor in Council may, on the recommendation of the Minister, extend the time limit extended under subsection (3).
Posting notice of extension on Internet site
(5) The Agency must post a notice of any extension granted under subsection (3) or (4) on the Internet site.
Excluded period
(6) If the Agency, the review panel or the Minister, under section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of the designated project to collect information or undertake a study with respect to the designated project, the calculation of the time limit within which the decision maker must issue the decision statement does not include:
(a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under section 39;
(b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2); and
(c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2).
Posting of decision statement on Internet site
55. The responsible authority referred to in any of paragraphs 15(a) to (c) must ensure that any decision statement that it issues under section 54 is posted on the Internet site, and the Agency must post on the Internet site any decision statement that the Minister issues under that section.
Decision statement considered part of licence under Nuclear Safety and Control Act
56. (1) A decision statement issued in relation to a designated project by the responsible authority referred to in paragraph 15(a) is considered to be a part of the licence issued under section 24 of the Nuclear Safety and Control Act in relation to the designated project.
Decision statement considered part of certificate, etc., under National Energy Board Act and Canada Oil and Gas Operations Act
(2) A decision statement issued in relation to a designated project by the responsible authority referred to in paragraph 15(b) is considered to be a part of
(a) the certificate, order, permit or licence issued, the leave or exemption granted or the direction or approval given under the National Energy Board Act in relation to the designated project; or
(b) the authorization or licence issued, the approval granted or the leave given under the Canada Oil and Gas Operations Act in relation to the designated project.
Participant Funding Programs
Agency’s obligation
57. The Agency must establish a participant funding program to facilitate the participation of the public in the environmental assessment of designated projects that have been referred to a review panel under section 38.
Responsible authority’s obligation
58. (1) A responsible authority must establish a participant funding program to facilitate the participation of the public in the environmental assessment of any designated project, for which it is the responsible authority, that meets the following conditions:
(a) it includes physical activities that are designated by regulations made under paragraph 84(e) or that are part of a class of activities designated by those regulations; and
(b) the environmental assessment of the designated project was not referred to a review panel under section 38.
Exception
(2) The obligation does not apply with respect to any designated project for which the Minister has approved a substitution under section 32.
Cost Recovery
Proponent’s obligation to pay costs
59. (1) For the Agency to recover its costs in relation to the environmental assessment of a designated project, the proponent of the designated project must pay to the Agency
(a) if the environmental assessment is conducted by the Agency, any costs that the Agency incurs for prescribed services provided by a third party in the course of the environmental assessment and any prescribed amounts that are related to the exercise of its responsibilities in relation to the environmental assessment; and
(b) if the environmental assessment is referred to a review panel under section 38, any costs that the review panel and the Agency incur for prescribed services provided by a third party in the course of the environmental assessment and any prescribed amounts that are related to the exercise of its responsibilities or to those of the members of the review panel, in relation to the environmental assessment.
User Fees Act
(2) The User Fees Act does not apply to the costs and amounts referred to in subsection (1) that are fixed at the time of the coming into force of this Act.
Services provided during given period
60. For the purposes of section 59, the services or responsibilities are limited to those provided or exercised during the period that begins when the notice of the commencement of the environmental assessment of the designated project is posted on the Internet site under section 17 and that ends when the decision statement is issued to the proponent under section 54.
Debt due to Her Majesty
61. The costs and amounts that the proponent must pay under section 59 constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.
Termination of Environmental Assessment
Termination by responsible authority or Minister
62. The responsible authority with respect to a designated project — or the Minister if the environmental assessment of the designated project has been referred to a review panel under section 38 — may terminate the environmental assessment if the proponent advises the responsible authority or the Minister in writing that the proponent does not intend to carry out the designated project.
Termination by responsible authority referred to in any of paragraphs 15(a) to (c)
63. The responsible authority referred to in any of paragraphs 15(a) to (c) may terminate the environmental assessment of a designated project for which it is the responsible authority if it decides not to exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit the designated project to be carried out in whole or in part and, if the responsible authority is referred to in paragraph 15(c), the environmental assessment of a designated project was not referred to a review panel under section 38.
Termination by Minister
64. The Minister may terminate the environmental assessment by a review panel of a designated project for which the responsible authority is referred to in paragraph 15(c) if it decides not to exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit the designated project to be carried out in whole or in part.
Confidential Information
No disclosure
65. Despite any other provision of this Act, no confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies is to be disclosed or made available under this Act to any person.
DUTIES OF CERTAIN AUTHORITIES IN RELATION TO PROJECTS
Definitions
66. The following definitions apply in sections 5 and 67 to 72.
“authority”
« autorité »
“authority” means
(a) a federal authority; and
(b) any other body that is set out in Schedule 3.
“project”
« projet »
“project” means a physical activity that is carried out in relation to a physical work and is not a designated project.
Project carried out on federal lands
67. An authority must not carry out a project on federal lands, or exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit a project to be carried out, in whole or in part, on federal lands, unless
(a) the authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or
(b) the authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides that those effects are justified in the circumstances under subsection 69(3).
Project outside Canada
68. A federal authority must not carry out a project outside Canada, or provide financial assistance to any person for the purpose of enabling, in whole or in part, a project to be carried out outside Canada, unless
(a) the federal authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or
(b) the federal authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides that those effects are justified in the circumstances under subsection 69(3).
Referral to Governor in Council
69. (1) If the authority determines that the carrying out of a project on federal lands or outside Canada is likely to cause significant adverse environmental effects, the authority may refer to the Governor in Council the matter of whether those effects are justified in the circumstances.
Referral through Minister
(2) When the determination is made by an authority other than a federal Minister, then the referral to the Governor in Council is made through the Minister responsible before Parliament for that authority.
Governor in Council’s decision
(3) When a matter has been referred to the Governor in Council, the Governor in Council must decide whether the significant adverse environmental effects are justified in the circumstances and must inform the authority of its decision.
Non-application — national emergency or emergency
70. Sections 67 and 68 do not apply to an authority in respect of a project
(a) in relation to which there are matters of national security;
(b) that is to be carried out in response to a national emergency for which special temporary measures are being taken under the Emergencies Act; or
(c) that is to be carried out in response to an emergency, and carrying out of the project without delay is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.
Federal authority’s reporting duty
71. (1) The federal authority must, at the end of each fiscal year, report on its activities under sections 67 to 69 during the previous fiscal year.
Tabling in Parliament
(2) The information on its activities must be laid before each House of Parliament during the fiscal year after the fiscal year to which the information relates.
Authority’s reporting duty
72. (1) The authority referred to in paragraph (b) of the definition “authority” in section 66 must, each year, report on its activities during the previous year under sections 67 and 69.
Availability
(2) The authority must make the information on its activities available to the public.
REGIONAL STUDIES
Establishment of committee — region entirely on federal lands
73. (1) The Minister may establish a committee to conduct a study of the effects of existing or future physical activities carried out in a region that is entirely on federal lands.
Mandate and appointment of members
(2) If the Minister establishes a committee, he or she must establish its terms of reference and appoint as a member of the committee one or more persons.
Joint establishment of committee — other regions
74. (1) If the Minister is of the opinion that it is appropriate to conduct a study of the effects of existing or future physical activities carried out in a region that is composed in part of federal lands or in a region that is entirely outside federal lands,
(a) the Minister may enter into an agreement or arrangement with any jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) respecting the joint establishment of a committee to conduct the study and the manner in which the study is to be conducted; and
(b) the Minister and the Minister of Foreign Affairs may enter into an agreement or arrangement with any jurisdiction referred to in paragraph (g) or (h) of that definition respecting the joint establishment of a committee to conduct the study and the manner in which the study is to be conducted.
Mandate and appointment of members
(2) If an agreement or arrangement referred to in subsection (1) is entered into, the Minister must establish — or approve — the committee’s terms of reference and appoint one or more persons as a member of the committee — or approve their appointment.
Report to Minister
75. On completion of the study that it conducts, the committee established under section 73 or under an agreement or arrangement entered into under paragraph 74(1)(a) or (b) must provide a report to the Minister.
Public notice
76. On receiving the committee’s report, the Minister must make the report available to the public in any manner he or she considers appropriate to facilitate public access to the report and must advise the public that it is available.
Application of section 45
77. Section 45 applies, with any necessary modifications, to a committee referred to in section 75 and, for the purpose of applying section 45 to a committee, a reference in that section to a review panel is a reference to a committee.
CANADIAN ENVIRONMENTAL ASSESSMENT REGISTRY
Establishment of Registry
Canadian Environmental Assessment Registry
78. (1) For the purpose of facilitating public access to records relating to environmental assessments and providing notice in a timely manner of those assessments, there is to be a registry called the Canadian Environmental Assessment Registry, consisting of an Internet site and project files.
Right of access
(2) The Registry must be operated in a manner that ensures convenient public access to it. That right of access to the Registry is in addition to any right of access provided under any other Act of Parliament.
Copy
(3) For the purpose of facilitating public access to records included in the Registry, the responsible authority must ensure that a copy of any of those records is provided in a timely manner on request.
Internet Site
Establishment and maintenance
79. (1) The Agency must establish and maintain an Internet site that is available to the public.
Contents — responsible authority
(2) The responsible authority with respect to a designated project must ensure that the following records and information, relating to the environmental assessment of the designated project that it conducts, are posted on the Internet site:
(a) any public notice that is issued by the responsible authority to request participation of the public — or, with respect to a designated project that requires that a certif-icate be issued in accordance with an order made under section 54 of the National Energy Board Act, of any interested party — in the environmental assessment;
(b) a description of the factors to be taken into account in the environmental assessment and of the scope of those factors or an indication of how such a description may be obtained;
(c) the report with respect to the environmental assessment that is taken into account by the responsible authority or the Minister for the purpose of making decisions under section 27 or 36, or a summary of the report and an indication of how a copy of the report may be obtained;
(d) the report with respect to the environmental assessment or the reconsideration report that is taken into account by the Governor in Council for the purpose of making a decision under section 31, or a summary of that report and an indication of how a copy of that report may be obtained;
(e) notice of the responsible authority’s decision to terminate the environmental assessment under section 62 or 63;
(f) any other information that the responsible authority considers appropriate, including information in the form of a list of relevant records and an indication of how a copy of them may be obtained; and
(g) any other record or information prescribed by regulations made under paragraph 84(f).
Contents — Agency
(3) The Agency must ensure that, in the case of an assessment conducted by a review panel or an environmental assessment completed under section 50, the following records or information are posted on the Internet site:
(a) the review panel’s terms of reference;
(b) any public notice that is issued by the review panel to request public participation in an environmental assessment;
(c) the report with respect to the environmental assessment that is taken into account by the Minister for the purpose of making decisions under section 47 or 51, or a summary of the report and an indication of how a copy of the report may be obtained;
(d) notice of the termination of an assessment conducted by the review panel under section 49;
(e) notice of the Minister’s decision to terminate an environmental assessment under section 62 or 64;
(f) any other information that the Agency considers appropriate, including information in the form of a list of relevant documents and an indication of how a copy of them may be obtained; and
(g) any other record or information prescribed by regulations made under paragraph 84(f).
Management of Internet site
(4) The Agency must determine
(a) what the form of the Internet site is to be and how it is to be kept;
(b) what information must be contained in any record required to be posted on the Internet site under this Act; and
(c) when information may be removed from the Internet site.
Project Files
Establishment and maintenance
80. (1) In respect of every designated project for which a screening or an environmental assessment is conducted, a project file must be established and maintained
(a) by the Agency when there is a screening of the designated project, during the screening; and
(b) by the responsible authority from the commencement of the environmental assessment until any follow-up program in respect of the designated project is completed.
Contents of project file
(2) A project file must contain all records produced, collected or received for the purpose of conducting the screening and the environmental assessment of the designated project, including
(a) all records posted on the Internet site;
(b) the description of the designated project;
(c) any report relating to the environmental assessment;
(d) any comments that are received from the public in relation to the screening and the environmental assessment;
(e) any records relating to the design or implementation of any follow-up program; and
(f) any records relating to mitigation meas-ures to be implemented.
General
Categories of available information
81. (1) Despite any other provision of this Act, the Registry must contain a record, part of a record or information only if
(a) it has otherwise been made publicly available; or
(b) the responsible authority, in the case of a record under its control, or the Minister, in the case of a record under the Agency’s control,
(i) determines that it would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record came under the control of the responsible authority or the Agency, including any record that would be disclosed in the public interest under subsection 20(6) of that Act, or
(ii) believes on reasonable grounds that it would be in the public interest to disclose it because it is required for the public to participate effectively in the environmental assessment — other than any record the disclosure of which would be prohibited under section 20 of the Access to Information Act.
Applicability of sections 27, 28 and 44 of Access to Information Act
(2) Sections 27, 28 and 44 of the Access to Information Act apply to any information described in subsection 27(1) of that Act that the Agency or a responsible authority intends to be included in the Registry with any necessary modifications, including the following:
(a) the information is deemed to be a record that the head of a government institution intends to disclose; and
(b) any reference to the person who requested access must be disregarded.
Protection from civil proceeding or prosecution
82. Despite any other Act of Parliament, no civil or criminal proceedings lie against a responsible authority, the Agency or the Minister, or against any person acting on behalf of, or under the direction of, any one of them and no proceedings lie against the Crown, the Agency or any responsible authority, for the disclosure in good faith of any record or any part of a record under this Act or for any consequences that flow from that disclosure or for the failure to give any notice required under section 27 or 28 of the Access to Information Act if reasonable care is taken to give the required notice.
ADMINISTRATION
Regulations — Governor in Council
83. The Governor in Council may make regulations
(a) amending Schedule 1 or 3 by adding or deleting a body or a class of bodies;
(b) prescribing, for the purposes of paragraph 15(c), the federal authority that performs regulatory functions and that may hold public hearings;
(c) exempting any class of proponents or class of designated projects from the application of section 59;
(d) varying or excluding any requirement set out in this Act or the regulations as it applies to physical activities to be carried out
(i) on reserves, surrendered lands or other lands that are vested in Her Majesty and subject to the Indian Act,
(ii) on lands covered by land claim agreements referred to in section 35 of the Constitution Act, 1982,
(iii) under international agreements or arrangements entered into by the Government of Canada, or
(iv) in relation to which there are matters of national security;
(e) prescribing anything that, by this Act, is to be prescribed;
(f) prescribing the way in which anything that is required or authorized by this Act to be prescribed is to be determined; and
(g) generally, for carrying out the purposes and provisions of this Act.
Regulations — Minister
84. The Minister may make regulations
(a) for the purpose of the definition “designated project” in subsection 2(1), designating a physical activity or class of physical activities and specifying for each designated physical activity or class of physical activities one of the following federal authorities to which the physical activity is linked:
(i) the Canadian Nuclear Safety Commission,
(ii) the National Energy Board,
(iii) any federal authority that performs regulatory functions, that may hold public hearings and that is prescribed in regulations made under paragraph 83(b), or
(iv) the Agency;
(b) prescribing the information that must be contained in a description of a designated project;
(c) respecting the procedures, requirements and time periods relating to environmental assessments, including the manner of designing a follow-up program;
(d) respecting a participant funding program established under section 57 or established under section 58 by the responsible authority referred to in paragraph 15(d);
(e) designating, for the purposes of section 58, a physical activity or class of physical activities;
(f) respecting the Registry, including the identification of records or information to be posted on the Internet site and the establishment and maintenance of project files referred to in section 80; and
(g) respecting the charging of fees for providing copies of documents contained in the Registry.
Externally produced documents
85. (1) A regulation made under this Act may incorporate by reference documents that are produced by a person or body other than the Agency, including a federal authority referred to in any of paragraphs (a) to (d) of the definition “federal authority” in subsection 2(1).
Ambulatory incorporation by reference
(2) A document may be incorporated by reference either as it exists on a particular date or as amended from time to time.
Accessibility of incorporated document
(3) The Minister must ensure that any document incorporated by reference in a regulation is accessible.
No registration or publication
(4) For greater certainty, a document that is incorporated by reference into a regulation is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
Minister’s powers
86. (1) For the purposes of this Act, the Minister may
(a) issue guidelines and codes of practice respecting the application of this Act and, without limiting the generality of the foregoing, establish criteria to determine whether a designated project, taking into account the implementation of any appropriate mitigation measures, is likely to cause significant adverse environmental effects or whether such effects are justified in the circumstances;
(b) establish research and advisory bodies in the area of environmental assessment;
(c) enter into agreements or arrangements with any jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) respecting assessments of environmental effects;
(d) enter into agreements or arrangements with any jurisdiction for the purposes of coordination, consultation, exchange of information and the determination of factors to be considered in relation to the assessment of the environmental effects of designated projects of common interest;
(e) establish criteria for the appointment of members of review panels; and
(f) establish criteria for the appointment of members of committees established under section 73 or 74.
Power to enter into international agreements
(2) The Minister and the Minister of Foreign Affairs may enter into agreements or arrangements with any jurisdiction referred to in paragraphs (g) and (h) of the definition “jurisdiction” in subsection 2(1) respecting assessments of environmental effects, including, without limiting the generality of the foregoing, for the purposes of implementing the provisions of any international agreement or arrangement to which the Government of Canada is a party respecting the assessment of environmental effects.
Opportunity for public to comment
(3) The Minister must provide reasonable public notice of and a reasonable opportunity for anyone to comment on draft guidelines, codes of practice, agreements, arrangements or criteria under this section.
Availability to public
(4) Any guidelines, codes of practice, agreements, arrangements or criteria must be made available to the public.
Non-application — national security
87. (1) The Governor in Council may, by order, exclude a designated project from the application of this Act if, in the Governor in Council’s opinion, the designated project is one in relation to which there are matters of national security.
Non-application — national emergency or emergency
(2) The Minister may, by order, exclude a designated project from the application of this Act if, in the Minister’s opinion, the designated project is one to be carried out in response to
(a) a national emergency for which special temporary measures are being taken under the Emergencies Act; or
(b) an emergency, and carrying out the designated project without delay is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.
Posting of notice of order on Internet site
(3) The Agency must post on the Internet site a notice of any order made under subsection (2).
Statutory Instruments Act
88. An order made under subsection 14(2), 37(1), 87(1) or (2), 125(7) or 128(2) is not a statutory instrument for the purposes of the Statutory Instruments Act.
ADMINISTRATION AND ENFORCEMENT
Designation
Power to designate
89. (1) The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of this Act.
Certificate
(2) The Minister must provide every person designated under subsection (1) with a certificate of designation. That person must, if so requested, produce the certificate to the occupant or person in charge of a place referred to in subsection 90(1).
Powers
Authority to enter
90. (1) A person who is designated to verify compliance or prevent non-compliance with this Act or orders made under section 94 may, for those purposes, enter a place in which they have reasonable grounds to believe a designated project is being carried out or a record or anything relating to a designated project is located.
Powers on entry
(2) The designated person may, for those purposes,
(a) examine anything in the place;
(b) use any means of communication in the place or cause it to be used;
(c) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;
(d) prepare a document, or cause one to be prepared, based on the data;
(e) use any copying equipment in the place, or cause it to be used;
(f) remove anything from the place for examination or copying;
(g) take photographs and make recordings or sketches;
(h) order the owner or person in charge of the place or a person at the place to establish their identity to the designated person’s satisfaction or to stop or start an activity;
(i) order the owner or a person having possession, care or control of anything in the place to not move it, or to restrict its movement, for as long as, in the designated person’s opinion, is necessary;
(j) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it; and
(k) prohibit or limit access to all or part of the place.
Duty to assist
(3) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the designated person to exercise a power or perform a duty or function under this section and must provide any documents, data or information that are reasonably required for that purpose.
Warrant for dwelling-house
91. (1) If the place is a dwelling-house, the designated person must not enter it without the occupant’s consent except under the authority of a warrant issued under subsection (2).
Authority to issue warrant
(2) On ex parte application, a justice may issue a warrant authorizing a designated person who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
(a) the dwelling-house is a place referred to in subsection 90(1);
(b) entry to the dwelling-house is necessary for any of the purposes of that subsection; and
(c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.
Entry on private property
92. (1) For the purpose of gaining entry to a place referred to in subsection 90(1), a designated person may enter private property and pass through it, and is not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house.
Person accompanying designated person
(2) A person may, at the designated person’s request, accompany the designated person to assist them to gain entry to the place referred to in subsection 90(1) and is not liable for doing so.
Use of force
93. In executing a warrant to enter a dwelling-house, a designated person must not use force unless the use of force has been specifically authorized in the warrant and the designated person is accompanied by a peace officer.
Orders
Measures required
94. (1) If a person designated to verify compliance with this Act believes on reasonable grounds that there is a contravention of this Act, they may, among other things, order a person to
(a) stop doing something that is in contravention of this Act or cause it to be stopped; or
(b) take any measure that is necessary in order to comply with this Act or to mitigate the effects of non-compliance.
Notice
(2) The order must be provided in the form of a written notice and must include
(a) a statement of the reasons for the order; and
(b) the time and manner in which the order must be carried out.
Duty to comply with order
(3) Any person to whom an order is given under subsection (1) must comply with the order given.
Measures taken by designated person
95. If a person does not comply with an order made under subsection 94(1) within the time specified, the designated person may, on their own initiative and at that person’s expense, carry out the measure required.
Injunctions
Court’s power
96. (1) If, on the Minister’s application, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence under section 99, the court may issue an injunction ordering the person who is named in the application to
(a) refrain from doing an act that, in the court’s opinion, may constitute or be directed toward the commission of the offence; or
(b) do an act that, in the opinion of the court, may prevent the commission of the offence.
Notice
(2) At least 48 hours before the injunction is issued, notice of the application must be given to persons named in the application, unless the urgency of the situation is such that the delay involved in giving the notice would not be in the public interest.
Prohibitions and Offences
Obstruction
97. It is prohibited to obstruct or hinder a designated person who is exercising their powers or performing their duties and functions under this Act.
False statements or information
98. It is prohibited to knowingly make a false or misleading statement or knowingly provide false or misleading information in connection with any matter under this Act to any person who is exercising their powers or performing their duties and functions under this Act.
Contravention — section 6
99. (1) Any proponent who contravenes section 6 is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $200,000 and, for any subsequent offence, to a fine of not more than $400,000.
Contravention — subsection 94(3)
(2) A person who contravenes subsection 94(3) is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $200,000 and, for any subsequent offence, to a fine of not more than $400,000.
Contravention — section 97
(3) Any person who contravenes section 97 is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $300,000.
Continuing offences
(4) If an offence under subsection (1) or (2) is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.
Due diligence defence
(5) A person must not be found guilty of an offence under subsection (1), (2) or (3) if they establish that they exercised due diligence to prevent the commission of the offence.
Contravention — section 98
100. Any person who contravenes section 98 is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $300,000.
Limitation period
101. Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within two years after the day on which the Minister becomes aware of the acts or omissions that constitute the alleged offence.
Admissibility of evidence
102. (1) In proceedings for an offence under this Act, a statement, certificate, report or other document of the Minister, the responsible authority or the designated person that is purported to have been signed by that person or authority is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof of the matters asserted in it.
Copies and extracts
(2) In proceedings for an offence under this Act, a copy of or an extract from any document that is made by the Minister, the responsible authority or the designated person that appears to have been certified under the signature of that person or authority as a true copy or extract is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.
Presumed date of issue
(3) A document referred to in this section is, in the absence of evidence to the contrary, presumed to have been issued on the date that it bears.
Notice
(4) No document referred to in this section may be received in evidence unless the party intending to produce it has provided reasonable notice of that intention to the party against whom it is intended to be produced together with a copy of the document.
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY
Agency continued
103. (1) The Canadian Environmental Assessment Agency is continued and must advise and assist the Minister in exercising the powers and performing the duties and functions conferred on him or her by this Act.
Minister’s responsibility
(2) The Minister is responsible for the Agency.
Delegation to Agency
104. (1) The Minister may, subject to any terms and conditions that the Minister specifies, delegate to an officer or employee of the Agency any of the powers, duties and functions that the Minister is authorized to exercise or perform under this Act.
Restriction
(2) However, the Minister is not authorized to delegate a power to make regulations nor a power to delegate under subsection (1).
Agency’s objects
105. The Agency’s objects are
(a) to conduct or administer environmental assessments and administer any other requirements and procedures established by this Act and the regulations;
(b) to promote uniformity and harmonization in relation to the assessment of environmental effects across Canada at all levels of government;
(c) to promote or conduct research in matters of environmental assessment and to encour-age the development of environmental assessment techniques and practices, including testing programs, alone or in cooperation with other agencies or organizations;
(d) to promote environmental assessment in a manner that is consistent with the purposes of this Act;
(e) to promote, monitor and facilitate compliance with this Act;
(f) to promote and monitor the quality of environmental assessments conducted under this Act; and
(g) to engage in consultation with Aboriginal peoples on policy issues related to this Act.
Agency’s duties
106. (1) In carrying out its objects, the Agency must
(a) provide support for review panels and any committees established under section 73 or under an agreement or arrangement entered into under paragraph 74(1)(a) or (b);
(b) provide, on the Minister’s request, administrative support for any research and advisory body established under paragraph 86(1)(b); and
(c) provide information or training to facilitate the application of this Act.
Agency’s powers
(2) In carrying out its objects, the Agency may
(a) undertake studies or activities or conduct research relating to environmental assessment;
(b) advise persons and organizations on matters relating to the assessment of environmental effects; and
(c) negotiate agreements or arrangements referred to in paragraph 86(1)(c) or (d) on the Minister’s behalf.
Using government facilities
107. In exercising its powers and performing its duties and functions under this Act, the Agency must, when appropriate, make use of the services and facilities of departments, boards and agencies of the Government of Canada.
President
108. (1) The Governor in Council appoints an officer to be the President of the Agency, to hold office during pleasure, who is, for the purposes of this Act, a deputy of the Minister.
President — chief executive officer
(2) The President is the Agency’s chief executive officer, and may exercise all of the Minister’s powers under this Act as authorized by the Minister.
Acting President — Executive Vice-president
(3) Subject to subsection (5), in the event of the absence or incapacity of the President or a vacancy in that office, the Executive Vice-president acts as, and exercises the powers of, the President in the interim.
Acting President — other person
(4) Subject to subsection (5), the Minister may appoint a person other than the Executive Vice-president to act as the President in the interim.
Governor in Council’s approval required
(5) The Executive Vice-president, or a person appointed under subsection (4), must not act as the President for a period exceeding 90 days without the Governor in Council’s approval.
Executive Vice-president
109. (1) The Governor in Council may appoint an officer to be the Executive Vice-president of the Agency and to hold office during pleasure.
Powers, duties and functions
(2) The Executive Vice-president must exercise any powers and perform any duties and functions that the President may assign.
Remuneration
110. The President and the Executive Vice-president are to be paid any remuneration that the Governor in Council may fix.
Appointment under Public Service Employment Act
111. The employees who are necessary to carry out the Agency’s work are to be appointed in accordance with the Public Service Employment Act.
Head office
112. The head office of the Agency is to be in the National Capital Region as described in the schedule to the National Capital Act.
Contracts, etc., binding on Her Majesty
113. (1) Every contract, memorandum of understanding and arrangement entered into by the Agency in its own name is binding on Her Majesty in right of Canada to the same extent as it is binding on the Agency.
Legal proceedings
(2) Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Agency, whether in its own name or in the name of Her Majesty in right of Canada, may be brought or taken by or against the Agency in its own name in any court that would have jurisdiction if the Agency were a corporation that is not an agent of Her Majesty.
ANNUAL REPORT
Annual report to Parliament
114. (1) The Minister must, at the end of each fiscal year, prepare a report on the Agency’s activities and the administration and implementation of this Act during the previous fiscal year.
Tabling in Parliament
(2) The Minister must, during the fiscal year after the fiscal year for which the report is prepared, cause the report to be laid before each House of Parliament.
TRANSITIONAL PROVISIONS
Definitions
115. The following definitions apply in this section and sections 116 to 129.
“former Act”
« ancienne loi »
“former Act” means the Canadian Environmental Assessment Act, chapter 37 of the Statutes of Canada, 1992.
“former Agency”
« ancienne Agence »
“former Agency” means the Canadian Environmental Assessment Agency established by section 61 of the former Act.
President of former Agency
116. The person who holds the office of President of the former Agency immediately before the day on which this Act comes into force continues in office as the President of the Agency until the expiry or revocation of the appointment.
Executive Vice-president of former Agency
117. The person who holds the office of Executive Vice-president of the former Agency immediately before the day on which this Act comes into force continues in office as the Executive Vice-president of the Agency until the expiry or revocation of the appointment.
Employment continued
118. (1) Nothing in this Act is to be construed to affect the status of an employee who, immediately before the day on which this Act comes into force, occupied a position in the former Agency, except that the employee is to, on that day, occupy their position in the Agency.
Definition of “employee”
(2) For the purposes of this section, “employee” has the same meaning as in subsection 2(1) of the Public Service Employment Act.
References
119. Every reference to the former Agency in any deed, contract, agreement or other document executed by the former Agency in its own name is, unless the context otherwise requires, to be read as a reference to the Agency.
Transfer of rights and obligations
120. All rights and property of the former Agency and of Her Majesty in right of Canada that are under the administration and control of the former Agency and all obligations of the former Agency are transferred to the Agency.
Commencement of legal proceedings
121. Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the former Agency may be brought against the Agency in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the former Agency.
Continuation of legal proceedings
122. Any action, suit or other legal proceeding to which the former Agency is party that is pending in any court immediately before the day on which this Act comes into force may be continued by or against the Agency in like manner and to the same extent as it could have been continued by or against the former Agency.
Appropriations
123. Any amount appropriated, for the fiscal year in which this Act comes into force, by an appropriation Act based on the Estimates for that year for defraying the charges and expenses of the former Agency and that, on the day on which this Act comes into force, is unexpended is considered, on that day, to be an amount appropriated for defraying the charges and expenses of the Agency.
Completion of screenings commenced under former Act
124. (1) Subject to subsections (3) to (5), any screening of a project commenced under the former Act before the day on which this Act comes into force must, if the project is a designated project, be continued and completed as if the former Act had not been repealed.
Minister’s power
(2) The Minister may, only on the day on which this Act comes into force, exercise the power conferred by subsection 14(2) with respect to a physical activity that is included in a project that was the subject of a screening commenced under the former Act before the day on which this Act comes into force, and that is not completed on that day and that is not, on that day, a designated project.
Time limit
(3) The responsible authority with respect to the project to which subsection (1) applies must take a course of action under section 20 of the former Act no later than 365 days after the day on which this Act comes into force.
Exclusion
(4) If the responsible authority under subsection 18(2) of the former Act requires the proponent of the project to collect information or undertake a study with respect to the project, the period that is taken by the proponent, in the opinion of the responsible authority, to comply with the requirement, is not included in the calculation of the 365-day time limit.
Project requiring assessment by review panel
(5) If, during the screening or once the screening is completed, the Minister is of the opinion that the project must be referred to a review panel, the environmental assessment of the project is continued under the process established under this Act. The project is considered to be a designated project and the Minister must refer the environmental assessment of the project to a review panel under section 38.
Completion of comprehensive studies commenced under former Act
125. (1) Subject to subsections (2) to (6), any comprehensive study of a project commenced under the former Act before the day on which this Act comes into force is continued and completed as if the former Act had not been repealed.
Establishing Timelines for Comprehensive Studies Regulations
(2) The Establishing Timelines for Comprehensive Studies Regulations are deemed to have come into force on July 12, 2010 with respect to a comprehensive study to which subsection (1) applies.
Six-month time limit
(3) With respect to any comprehensive study commenced before July 12, 2010 to which subsection (1) applies with respect to a project for which the responsible authority is not the Canadian Nuclear Safety Commission, the responsible authority must ensure that the Minister and the Agency are provided with the comprehensive study report no later than six months after the day on which this Act comes into force.
Six-month time limit
(4) With respect to any comprehensive study to which subsection (1) applies and which was commenced before July 12, 2010 by a port authority established under section 8 of the Canada Marine Act, the port authority must ensure that the comprehensive study report is provided to the Minister of Transport and the Agency no later than six months after the day on which this Act comes into force.
Excluded periods
(5) If, under the former Act, the responsible authority or the port authority requires the proponent to collect information or undertake a study with respect to the project, then
(a) the period that is taken by the proponent, in the opinion of the responsible authority, to comply with the requirement, is not included in the calculation of the six-month time limit referred to in subsection (3); and
(b) the period that is taken by the proponent, in the opinion of the port authority, to comply with the requirement, is not included in the calculation of the six-month time limit referred to in subsection (4).
Project requiring assessment by review panel
(6) If, during the comprehensive study, the Minister is of the opinion that the project must be referred to a review panel, the environmental assessment of the project is continued under the process established under this Act. The project is considered to be a designated project and the Minister must refer the environmental assessment of the project to a review panel under section 38.
Minister’s powers
(7) The Minister may, by order, exclude any comprehensive study of a project from the application of subsection (1) and provide that the environmental assessment of the project is continued under the process established under this Act. In such a case, the project is considered to be a designated project and, despite subsection 27(2), when the Minister must make decisions under section 27 with respect to the designated project, he or she must specify in the order the time limit for the decisions to be made. Subsections 27(3), (4) and (6) apply with respect to the time limit.
Posting of notice of order on Internet site
(8) The Agency must post a notice of any order made under subsection (7) on the Internet site.
Completion of assessment by a review panel commenced under former Act
126. (1) Despite subsection 38(6) and subject to subsections (2) to (6), any assessment by a review panel, in respect of a project, commenced under the process established under the former Act before the day on which this Act comes into force is continued under the process established under this Act as if the environmental assessment had been referred by the Minister to a review panel under section 38. The project is considered to be a designated project for the purposes of this Act and Part 3 of the Jobs, Growth and Long-term Prosperity Act, and
(a) if, before that day, a review panel was established under section 33 of the former Act, in respect of the project, that review panel is considered to have been established — and its members are considered to have been appointed — under subsection 42(1) of this Act;
(b) if, before that day, an agreement or arrangement was entered into under subsection 40(2) of the former Act, in respect of the project, that agreement or arrangement is considered to have been entered into under section 40 of this Act; and
(c) if, before that day, a review panel was established by an agreement or arrangement entered into under subsection 40(2) of the former Act or by document referred to in subsection 40(2.1) of the former Act, in respect of the project, it is considered to have been established by — and its members are considered to have been appointed under — an agreement or arrangement entered into under section 40 of this Act or by document referred to in subsection 41(2) of this Act.
Time limit for issuing decision statement under section 54
(2) The Minister must establish the time limit within which, from the day on which this Act comes into force, the decision statement that is required under section 54 in respect of the project must be issued. Subsection 54(3) applies with respect to the time limit.
Other time limits
(3) The Minister must, in respect of the project, also establish any of the time limits set out in paragraphs 38(3)(a) to (c) — which combined are not to exceed the time limit referred to in subsection (2) — that are necessary, depending on whether, on the day on which this Act comes into force, the review panel has or has not been established or the report with respect to the environmental assessment of the project has or has not been submitted to the Minister.
Certain time limits established jointly
(4) In respect of a project to which paragraph (1)(b) applies and for which the responsible authority is referred to in paragraph 15(a) or (b), the Minister jointly establishes the time limits under subsections (2) and (3) with the responsible authority with respect to the project.
Posting time limits on Internet site
(5) The Agency must post on the Internet site a notice of any time limits established under subsection (2) or (3) in respect of the project.
Excluded periods
(6) If the Agency, the review panel or the Minister, under section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of the project to collect information or undertake a study with respect to the designated project, the following periods are not included in the calculation of the time limit within which the Minister must issue the decision statement in respect of the project nor in the calculation of any of the time limits that are established under subsection (3):
(a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under section 39;
(b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2); and
(c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2).
Substitution under former Act
127. The environmental assessment of a project commenced under the former Act before the day on which this Act comes into force for which the Minister has, before that date, approved the substitution of a process under section 43 of the former Act is continued and completed as if the former Act had not been repealed.
Non-application of this Act
128. (1) This Act does not apply to a project, as defined in the former Act, that is a designated project as defined in this Act, if one of the following conditions applies:
(a) the proponent of the project has, before the day on which this Act comes into force, initiated the construction of the project;
(b) it was determined by the Agency or a federal authority under the former Act that an environmental assessment of the project was likely not required;
(c) the responsible authority has taken a course of action under paragraph 20(1)(a) or (b) or subsection 37(1) of the former Act in relation to the project; or
(d) an order issued under subsection (2) applies to the project.
Minister’s powers
(2) On the day on which this Act comes into force, the Minister may, by order, exclude from the application of this Act a project, as defined in the former Act, that is a designated project under this Act, if the Minister is of the opinion that the project was not subject to the former Act and that another jurisdiction that has powers, duties or functions in relation to the assessment of the environmental effects of the project has commenced that assessment.
Posting of notice of order on Internet site
(3) The Agency must post a notice of any order made under subsection (2) on the Internet site.
Privileged evidence, documents or things
129. The evidence, documents or things that, before the day on which this Act comes into force, are privileged under subsection 35(4) or (4.1) of the former Act are considered to be privileged under subsection 45(4) or (5), respectively, of this Act.