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Bill C-9

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RECOMMENDATION

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ``An Act to amend the Canadian Environmental Assessment Act''.

SUMMARY

This enactment implements the results of the statutory review of the Canadian Environmental Assessment Act conducted by the Minister of the Environment. It establishes a Federal Environmental Assessment Coordinator for projects that undergo screening or comprehensive study-level assessment. It modifies the comprehensive study process to prevent a second environmental assessment of a project by review panel, while extending the participant funding program to comprehensive studies. This enactment expands existing regulation-making authority for projects on federal lands, provides a new use for class screening reports as a replacement for project-specific assessments and makes follow-up programs mandatory for projects after a comprehensive study or review panel.

To provide Canadians with access to information about the environmental assessment of specific projects, this enactment creates the Canadian Environmental Assessment Registry. It requires that the Canadian Environmental Assessment Agency establish and lead a quality assurance program, promote and monitor compliance and assist relevant parties in building consensus and resolving disputes.

EXPLANATORY NOTES

Canadian Environmental Assessment Act

Clause 1: (1) and (2) The definitions ``comprehensive study'', ``exclusion list'' and ``federal authority'' in subsection 2(1) read as follows:

``comprehensive study'' means an environmental assessment that is conducted pursuant to section 21 and that includes a consideration of the factors required to be considered under subsections 16(1) and (2);

``exclusion list'' means a list of all projects or classes of projects that have been prescribed pursuant to regulations made under paragraph 59(c);

``federal authority'' means

      (a) a Minister of the Crown in right of Canada,

      (b) an agency of the Government of Canada or other body established by or pursuant to an Act of Parliament that is ultimately accountable through a Minister of the Crown in right of Canada to Parliament for the conduct of its affairs,

      (c) any department or departmental corporation set out in Schedule I or II to the Financial Administration Act, and

      (d) any other body that is prescribed pursuant to regulations made under paragraph 59(e),

    but does not include the Commissioner in Council or an agency or body of the Yukon Territory, the Northwest Territories or Nunavut, a council of the band within the meaning of the Indian Act, The Hamilton Harbour Commissioners constituted pursuant to The Hamilton Harbour Commissioners' Act, The Toronto Harbour Commissioners constituted pursuant to The Toronto Harbour Commissioners' Act, 1911, a harbour commission established pursuant to the Harbour Commissions Act, a Crown corporation within the meaning of the Financial Administration Act, a not-for-profit corporation that enters into an agreement under subsection 80(5) of the Canada Marine Act or a port authority established under that Act;

(3) The relevant portion of the definition ``federal lands'' in subsection 2(1) reads as follows:

``federal lands'' means

      (a) lands that belong to Her Majesty in right of Canada, or that Her Majesty in right of Canada has the power to dispose of, and all waters on and airspace above those lands, other than lands the administration and control of which have been transferred by the Governor in Council to the Commissioner of the Yukon Territory, the Northwest Territories or Nunavut and lands the management of which has been granted to a port authority under the Canada Marine Act or a not-for-profit corporation that has entered into an agreement under subsection 80(5) of that Act,

(4) New.

Clause 2: New. The relevant portion of section 4 reads as follows:

4. The purposes of this Act are

Clause 3: (1) The relevant portion of subsection 7(1) reads as follows:

7. (1) Notwithstanding section 5, an environmental assessment of a project is not required where

    (a) the project is described in an exclusion list;

(2) Subsection 7(2) reads as follows:

(2) For greater certainty, an environmental assessment is not required where a federal authority exercises a power or performs a duty or function referred to in paragraph 5(1)(b) in relation to a project and the essential details of the project are not specified before or at the time the power is exercised or the duty or function is performed.

Clause 4: New.

Clause 5: Subsection 8(1.1) is new. Subsection 8(1) reads as follows:

8. (1) Before a Crown corporation within the meaning of the Financial Administration Act or any corporation controlled by such a corporation exercises a power or performs a duty or function referred to in paragraph 5(1)(a), (b) or (c) in relation to a project, the Crown corporation shall ensure or require the corporation controlled by it to ensure, as the case may be, that an assessment of the environmental effects of the project is conducted in accordance with any regulations made for that purpose under paragraph 59(j) as early as is practicable in the planning stages of the project and before irrevocable decisions are made.

Clause 6: Sections 9.1 and 10.1 are new. Sections 9 and 10 read as follows:

9. Before the Hamilton Harbour Commissioners constituted pursuant to The Hamilton Harbour Commissioners' Act, The Toronto Harbour Commissioners constituted pursuant to The Toronto Harbour Commissioners' Act, 1911, any harbour commission established pursuant to the Harbour Commissions Act, a not-for-profit corporation that enters into an agreement under subsection 80(5) of the Canada Marine Act or a port authority established under that Act exercises a power or performs a duty or function referred to in paragraph 5(1)(a), (b) or (c) in relation to a project, it shall ensure that an assessment of the environmental effects of the project is conducted in accordance with any regulations made for that purpose under paragraph 59(k) as early as is practicable in the planning stages of the project and before irrevocable decisions are made.

10. (1) Before a person or body receives financial assistance provided by a federal authority for the purpose of enabling a project to be carried out in whole or in part on a reserve that is set apart for the use and benefit of a band and that is subject to the Indian Act, the council of the band for whose use and benefit the reserve has been set apart shall ensure that an assessment of the environmental effects of the project is conducted in accordance with any regulations made for that purpose under paragraph 59(l) as early as is practicable in the planning stages of the project and before irrevocable decisions are made.

(2) Notwithstanding paragraph 5(1)(b), an environmental assessment of a project is not required by reason only of the provision of financial assistance for the purpose mentioned in subsection (1).

Clause 7: New.

Clause 8: New.

Clause 9: New.

Clause 10: (1) The relevant portion of subsection 18(1) reads as follows:

18. (1) Where a project is not described in the comprehensive study list or the exclusion list, the responsible authority shall ensure that

(2) Subsection 18(4) is new. Subsection 18(3) reads as follows:

(3) Where the responsible authority is of the opinion that public participation in the screening of a project is appropriate in the circumstances, or where required by regulation, the responsible authority shall give the public notice and an opportunity to examine and comment on the screening report and on any record that has been filed in the public registry established in respect of the project pursuant to section 55 before taking a course of action under section 20.

Clause 11: Section 19 reads as follows:

19. (1) Subject to subsection (2), the Agency may, on the request of the responsible authority and where the Agency determines that a screening report could be used as a model in conducting screenings of other projects within the same class, declare that report to be a class screening report.

(2) The Agency shall, before making a declaration pursuant to subsection (1),

    (a) publish in the Canada Gazette a notice setting out the following information, namely,

      (i) the date on which the screening report will be available to the public,

      (ii) the place at which copies of the screening report may be obtained, and

      (iii) the deadline and address for filing comments on the appropriateness of the use of the screening report as a model in conducting screenings of other projects within the same class; and

    (b) take into consideration any comments filed in respect of the screening report.

(3) Any declaration made pursuant to subsection (1) shall be published in the Canada Gazette and the screening report to which it relates shall be made available to the public at the registry maintained by the Agency.

(4) Where a project or part of a project is within a class in respect of which a class screening report has been declared, the responsible authority may use or permit the use of that report and the screening on which it is based to whatever extent the responsible authority considers appropriate for the purpose of complying with section 18.

(5) Where a responsible authority uses or permits the use of a class screening report, it shall ensure that any adjustments are made to the report that are necessary to take into account local circumstances and any cumulative environmental effects that may result from the project in combination with other projects or activities that have been or will be carried out.

(6) Where the Agency determines that a class screening report can no longer be used as a model in conducting screenings of other projects within the same class, the Agency may declare the report not to be a class screening report.

(7) Any declaration made pursuant to subsection (6) shall be published in the Canada Gazette and the screening report in respect of which it relates shall be removed from the public registry maintained by the Agency.

Clause 12: Subsections 20(2.1) and (2.2) are new. Subsection 20(3) reads as follows:

(3) Where the responsible authority takes a course of action pursuant to paragraph (1)(b) in relation to a project,

    (a) the responsible authority shall file a notice of that course of action in the public registry established in respect of the project pursuant to section 55; and

    (b) notwithstanding any other Act of Parliament, no power, duty or function conferred by or under that Act or any regulation made thereunder shall be exercised or performed that would permit that project to be carried out in whole or in part.

Clause 13: Sections 21.1 and 21.2 are new. Section 21 reads as follows:

21. Where a project is described in the comprehensive study list, the responsible authority shall

    (a) ensure that a comprehensive study is conducted, and a comprehensive study report is prepared and provided to the Minister and the Agency; or

    (b) refer the project to the Minister for a referral to a mediator or a review panel in accordance with section 29.

Clause 14: Section 23 reads as follows:

23. The Minister shall take one of the following courses of action in respect of a project after taking into consideration the comprehensive study report and any comments filed pursuant to subsection 22(2):

    (a) subject to subparagraph (b)(iii), where, taking into account the implementation of any appropriate mitigation measures,

      (i) the project is not likely to cause significant adverse environmental effects, or

      (ii) the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances,

    the Minister shall refer the project back to the responsible authority for action to be taken under section 37; or

    (b) where,

      (i) it is uncertain whether the project, taking into account the implementation of any appropriate mitigation measures, is likely to cause significant adverse environmental effects,

      (ii) the project, taking into account the implementation of any appropriate mitigation measures, is likely to cause significant adverse environmental effects and subparagraph (a)(ii) does not apply, or

      (iii) public concerns warrant a reference to a mediator or a review panel,

    the Minister shall refer the project to a mediator or a review panel in accordance with section 29.

Clause 15: Subsection 29(4) reads as follows:

(4) Where at any time after an environmental assessment or part of an environmental assessment of a project has been referred to a mediator, the Minister or the mediator determines that the mediation of any issue subject to the mediation is not likely to produce a result that is satisfactory to all the participants to the mediation, the Minister shall terminate the mediation of the issue and refer the issue to a review panel.

Clause 16: Subsection 32(1) reads as follows:

32. (1) A mediator shall, at the conclusion of the mediation, prepare and submit a report to the Minister and to the responsible authority.

Clause 17: (1) Subsection 35(3) reads as follows:

(3) 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 would be caused to the witness by the disclosure of the evidence, documents or other things that the witness is ordered to give or produce pursuant to subsection (1).

(2) New.

Clause 18: (1) The relevant portion of subsection 37(1) reads as follows:

37. (1) Subject to subsection (1.1), the responsible authority shall take one of the following courses of action in respect of a project after taking into consideration the report submitted by a mediator or a review panel or, in the case of a project referred back to the responsible authority pursuant to paragraph 23(a), the comprehensive study report:

(2) New.

(3) Subsections 37(2.1) and (2.2) are new. Subsection 37(3) reads as follows:

(3) Where the responsible authority takes a course of action referred to in paragraph (1)(b) in relation to a project,

    (a) the responsible authority shall file a notice of that course of action in the public registry established in respect of the project pursuant to section 55; and

    (b) notwithstanding any other Act of Parliament, no power, duty or function conferred by or under that Act or any regulation made thereunder shall be exercised or performed that would permit that project to be carried out in whole or in part.

Clause 19: Section 38 reads as follows:

38. (1) Where a responsible authority takes a course of action pursuant to paragraph 20(1)(a) or 37(1)(a), it shall, in accordance with any regulations made for that purpose, design any follow-up program that it considers appropriate for the project and arrange for the implementation of that program.

(2) A responsible authority referred to in subsection (1) shall, in accordance with any regulations made for that purpose, advise the public of

    (a) its course of action in relation to the project;

    (b) any mitigation measures to be implemented with respect to the adverse environmental effects of the project;

    (c) the extent to which the recommendations set out in any report submitted by a mediator or a review panel have been adopted and the reasons for not having adopted any of those recommendations;

    (d) any follow-up program designed for the project pursuant to subsection (1); and

    (e) any results of any follow-up program.

Clause 20: Subsection 40(2) reads as follows:

(2) Subject to section 41, where the referral of a project to a review panel is required or permitted by this Act and a jurisdiction referred to in paragraph (1)(a), (b), (c) or (d) has a responsibility or an authority to conduct an assessment of the environmental effects of the project or any part of it, the Minister

    (a) may enter into an agreement or arrangement with that jurisdiction respecting the joint establishment of a review panel and the manner in which an assessment of the environmental effects of the project is to be conducted by the review panel; and

    (b) shall, in the case of a jurisdiction within the meaning of subsection 12(5), offer to consult and cooperate with that other jurisdiction respecting the assessment of the environmental effects of the project.

Clause 21: The relevant portion of section 41 reads as follows:

41. An agreement or arrangement entered into pursuant to subsection 40(2) or (3), and any document establishing a review panel under subsection 40(2.1), shall provide that the assessment of the environmental effects of the project shall include a consideration of the factors required to be considered under subsections 16(1) and (2) and be conducted in accordance with any additional requirements and procedures set out in the agreement and shall provide that

    . . .

    (d) the review panel is to have the powers provided for in section 35;

Clause 22: Subsection 46(1) reads as follows:

46. (1) Where no power, duty or function referred to in section 5 or conferred by or under any other Act of Parliament or regulation is to be exercised or performed by a federal authority in relation to a project that is to be carried out in a province and the Minister is of the opinion that the project may cause significant adverse environmental effects in another province, the Minister may refer the project to a mediator or a review panel in accordance with section 29 for an assessment of the environmental effects of the project in that other province.

Clause 23: Subsection 47(1) reads as follows:

47. (1) Where no power, duty or function referred to in section 5 or conferred by or under any other Act of Parliament or regulation is to be exercised or performed by a federal authority in relation to a project that is to be carried out in Canada or on federal lands and the Minister is of the opinion that the project may cause significant adverse environmental effects occurring both outside Canada and outside those federal lands, the Minister and the Minister of Foreign Affairs may refer the project to a mediator or a review panel in accordance with section 29 for an assessment of the environmental effects of the project occurring both outside Canada and outside federal lands.

Clause 24: (1) The relevant portion of subsection 48(1) reads as follows:

48. (1) Where no power, duty or function referred to in section 5 or conferred by or under any other Act of Parliament or regulation is to be exercised or performed by a federal authority in relation to a project that is to be carried out in Canada and the Minister is of the opinion that the project may cause significant adverse environmental effects on

(2) The relevant portion of subsection 48(2) reads as follows:

(2) Where no power, duty or function referred to in section 5 or conferred by or under any other Act of Parliament or regulation is to be exercised or performed by a federal authority in relation to a project that is to be carried out on

(3) New. The relevant portion of subsection 48(5) reads as follows:

(5) At least ten days before a reference is made pursuant to subsection (1) or (2), the Minister shall give notice of the intention to do so to

Clause 25: Subsections 54(2) and (3) read as follows:

(2) Subject to subsection (3), where a federal authority or the Government of Canada on behalf of a federal authority enters into an agreement or arrangement with any government or any person, organization or institution, whether or not part of or affiliated with a government, under which a federal authority exercises a power or performs a duty or function referred to in paragraph 5(1)(b) in relation to projects the essential details of which are not specified and that are to be carried out both outside Canada and outside federal lands, the Government of Canada or the federal authority shall ensure, in so far as is practicable and subject to any other such agreement to which the Government of Canada or federal authority is a party, that the agreement or arrangement provides for the assessment of the environmental effects of those projects and that the assessment will be carried out as early as practicable in the planning stages of those projects, before irrevocable decisions are made, in accordance with

    (a) this Act and the regulations; or

    (b) a process for the assessment of the environmental effects of projects that is consistent with the requirements of this Act and is in effect in the foreign state where the projects are to be carried out.

(3) Subsection (1) or (2) does not apply in respect of an agreement or arrangement referred to in that subsection where the federal authority will be required to exercise a power or perform a duty or function referred to in paragraph 5(1)(b) in relation to the projects in respect of which the agreement or arrangement applies after the essential details of the projects are specified.

Clause 26: Sections 55.1 to 55.4 are new. Section 55 and the heading before it read as follows:

ACCESS TO INFORMATION

55. (1) For the purpose of facilitating public access to records relating to environmental assessments, a public registry shall be established and operated in a manner to ensure convenient public access to the registry and in accordance with this Act and the regulations in respect of every project for which an environmental assessment is conducted.

(2) The public registry in respect of a project shall be maintained

    (a) by the responsible authority from the commencement of the environmental assessment until any follow-up program in respect of the project is completed; and

    (b) where the project is referred to a mediator or a review panel, by the Agency from the appointment of the mediator or the members of the review panel until the report of the mediator or review panel is submitted to the Minister.

(3) Subject to subsection (4), a public registry shall contain all records produced, collected, or submitted with respect to the environmental assessment of the project, including

    (a) any report relating to the assessment;

    (b) any comments filed by the public in relation to the assessment;

    (c) any records prepared by the responsible authority for the purposes of section 38;

    (d) any records produced as the result of the implementation of any follow-up program;

    (e) any terms of reference for a mediation or a panel review; and

    (f) any documents requiring mitigation measures to be implemented.

(4) A public registry shall contain a record referred to in subsection (3) if the record falls within one of the following categories:

    (a) records that have otherwise been made available to the public in carrying out the assessment pursuant to this Act and any additional records that have otherwise been made publicly available;

    (b) any record or part of a record that 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, determines 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 comes under its control, including any record that would be disclosed in the public interest pursuant to subsection 20(6) of that Act; and

    (c) any record or part of a record, except a record or part containing third party information, if the responsible authority, in the case of a record under the responsible authority's control, or the Minister, in the case of a record under the Agency's control, believes on reasonable grounds that its disclosure would be in the public interest because it is required in order for the public to participate effectively in the assessment.

(5) Sections 27, 28 and 44 of the Access to Information Act apply, with such modifications as the circumstances require, to any determination made under paragraph (4)(b) in respect of third party information, and, for the purpose of section 27 of that Act, any record referred to in paragraph (4)(b) shall be deemed to be a record that the responsible authority or the Minister intends to disclose and, for the purpose of applying that Act, any reference in that Act to the person who requested access shall be disregarded if no person has requested access to the information.

(6) Notwithstanding any other Act of Parliament, no civil or criminal proceedings lie against a responsible authority or the Minister, or against any person acting on behalf of or under the direction of a responsible authority or the Minister, and no proceedings lie against the Crown or any responsible authority for the disclosure in good faith of any record or any part of a record pursuant to this Act, for any consequences that flow from that disclosure, or for the failure to give any notice required under section 27 or any other provision of the Access to Information Act if reasonable care is taken to give the required notice.

(7) For the purposes of this section, ``third party information'' means

    (a) trade secrets of a third party;

    (b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

    (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; and

    (d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

Clause 27: The heading before section 56 reads as follows:

STATISTICAL SUMMARY

Clause 28: New.

Clause 29: Subsection 58(1.1) reads as follows:

(1.1) For the purposes of this Act, the Minister shall establish a participant funding program to facilitate the participation of the public in mediations and assessments by review panels.

Clause 30: (1) to (4) Paragraphs 59(a.1), (c.1), (h.1), (i.1), (i.2), (j.1) to (j.3), (k.1) to (k.5), (l.01) and (l.02) are new. The relevant portion of section 59 reads as follows:

59. The Governor in Council may make regulations

    . . .

    (c) prescribing any project or class of projects for which an environmental assessment is not required where the Governor in Council is satisfied that

      (i) an environmental assessment of the project would be inappropriate for reasons of national security, or

      (ii) in the case of a project in relation to a physical work, the environmental effects of the project are insignificant or the contribution of the responsible authority to the project in exercising powers or performing duties or functions referred to in section 5 in relation to the project is minimal;

    . . .

    (h) respecting the dissemination by responsible authorities of information relating to projects and the environmental assessment of projects and the establishment, maintenance and operation of a public registry, including facilities to enable the public to examine physical or electronic records contained in the registry, the time and manner in which those records may be examined or copied by the public and the charging of fees therefor, and the transfer and retention of those records after the completion of any follow-up program;

    . . .

    (j) respecting the manner of conducting assessments of the environmental effects of, and follow-up programs for projects for which a Crown corporation within the meaning of the Financial Administration Act or any corporation controlled by such a corporation exercises a power or performs a duty or function referred to in paragraph 5(1)(a), (b) or (c), respecting any action to be taken in respect of those projects during the environmental assessment process and, for those purposes, respecting the application of the laws from time to time in force in any province;

    (k) respecting the manner of conducting assessments of the environmental effects of, and follow-up programs for, projects for which The Hamilton Harbour Commissioners constituted pursuant to The Hamilton Harbour Commissioners' Act, The Toronto Harbour Commissioners constituted pursuant to The Toronto Harbour Commissioners' Act, 1911, any harbour commission established pursuant to the Harbour Commissions Act, a not-for-profit corporation that enters into an agreement under subsection 80(5) of the Canada Marine Act or a port authority established under that Act, exercises a power or performs a duty or function referred to in paragraph 5(1)(a), (b) or (c), respecting any action to be taken in respect of those projects during the environmental assessment process and, for those purposes, respecting the application of the laws from time to time in force in any province;

    (l) respecting the manner of conducting any assessment of the environmental effects of, and follow-up programs for a project for which a person or body receives financial assistance provided by a federal authority for the purpose of enabling the project to be carried out in whole or in part on a reserve that is set apart for the use and benefit of a band and that is subject to the Indian Act, and respecting any action to be taken in respect of that project during the environmental assessment process;

Clause 31: New. The relevant portion of section 62 reads as follows:

62. The objects of the Agency are

Clause 32: (1) New. The relevant portion of subsection 63(1) reads as follows:

63. (1) In carrying out its objects, the Agency shall

(2) New. The relevant portion of subsection 63(2) reads as follows:

(2) In carrying out its objects, the Agency may

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