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Impact Assessment Act (S.C. 2019, c. 28, s. 1)

Full Document:  

Act current to 2022-09-22 and last amended on 2019-08-28. Previous Versions

Impact Assessments (continued)

Impact Assessment by a Review Panel (continued)

General Rules (continued)

Marginal note:Powers in relation to Nuclear Safety and Control Act

 For the purpose of conducting an impact assessment of a designated project that includes activities regulated under the Nuclear Safety and Control Act, including preparing a report with respect to that impact assessment, the review panel may exercise the powers conferred on the Canadian Nuclear Safety Commission.

Marginal note:Terms of reference — Canadian Energy Regulator Act

  •  (1) When the Minister refers an impact assessment of a designated project that includes activities regulated under the Canadian Energy Regulator Act to a review panel, the Minister must — within 45 days after the day on which the notice referred to in subsection 19(4) with respect to the designated project is posted on the Internet site — establish the panel’s terms of reference in consultation with the Lead Commissioner of the Canadian Energy Regulator and the Agency must, within the same period, appoint the chairperson and at least two other members.

  • Marginal note:Appointment of members

    (2) The persons appointed to the review panel under subsection (1) must be unbiased and free from any conflict of interest relative to the designated project and must have knowledge or experience relevant to the designated project’s anticipated effects or have knowledge of the interests and concerns of the Indigenous peoples of Canada that are relevant to the assessment.

  • Marginal note:Appointment from roster

    (3) At least one of the persons appointed under paragraph (1) must be appointed from a roster established under paragraph 50(c), on the recommendation of the Lead Commissioner of the Canadian Energy Regulator.

  • Marginal note:Not majority

    (4) The persons appointed from the roster must not constitute a majority of the members of the panel.

Marginal note:Powers in relation to Canadian Energy Regulator Act

 For the purpose of conducting an impact assessment of a designated project that includes activities regulated under the Canadian Energy Regulator Act, including preparing a report with respect to that impact assessment, the review panel may exercise the powers conferred on the Commission that is referred to in subsection 26(1) of that Act.

Marginal note:Summary and information

 In establishing or approving a panel’s terms of reference, the Minister must consider, among other things, the summary of issues and the information or knowledge referred to in section 14.

Marginal note:Establishment of roster

  •  (1) The Minister must establish the following rosters:

    • (a) a roster of persons who may be appointed as members of a review panel established under any of the following:

      • (i) section 41,

      • (ii) subsection 44(1),

      • (iii) subsection 47(1),

      • (iv) an agreement, arrangement or document referred to in section 42;

    • (b) a roster of persons who are members of the Canadian Nuclear Safety Commission and who may be appointed as members of a review panel established under subsection 44(1);

    • (c) a roster of persons who are commissioners under the Canadian Energy Regulator Act and who may be appointed as members of a review panel established under subsection 47(1).

  • Marginal note:Establishment of roster — Nuclear Safety and Control Act

    (2) In establishing a roster under paragraph (1)(b), the Minister must consult with the Minister of Natural Resources or the member of the Queen’s Privy Council for Canada that the Governor in Council designates as the Minister for the purposes of the Nuclear Safety and Control Act.

  • Marginal note:Establishment of roster — Canadian Energy Regulator Act

    (3) In establishing a roster under paragraph (1)(c), the Minister must consult with the member of the Queen’s Privy Council for Canada that the Governor in Council designates as the Minister for the purposes of the Canadian Energy Regulator Act.

Marginal note:Review panel’s duties

  •  (1) A review panel must, in accordance with its terms of reference,

    • (a) conduct an impact assessment of the designated project;

    • (b) ensure that the information that it uses when conducting the impact assessment is made available to the public;

    • (c) hold hearings in a manner that offers the public an opportunity to participate meaningfully, in the manner that the review panel considers appropriate and within the time period that it specifies, in the impact assessment;

    • (d) prepare a report with respect to the impact assessment that

      • (i) sets out the effects that, in the opinion of the review panel, are likely to be caused by the carrying out of the designated project,

      • (ii) indicates which of the effects referred to in subparagraph (i) are adverse effects within federal jurisdiction and which are adverse direct or incidental effects, and specifies the extent to which those effects are significant,

      • (ii.1) subject to section 119, sets out how the review panel, in determining the effects that are likely to be caused by the carrying out of the designated project, took into account and used any Indigenous knowledge provided with respect to the designated project,

      • (iii) sets out a summary of any comments received from the public, and

      • (iv) sets out the review panel’s rationale, conclusions and recommendations, including conclusions and recommendations with respect to any mitigation measures and follow-up program;

    • (e) submit the report with respect to the impact 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 impact assessment.

  • Marginal note:Duties in relation to Nuclear Safety and Control Act

    (2) A review panel established under subsection 44(1) must, in accordance with its terms of reference, include in the report that it prepares the information necessary for the licence referred to in the panel’s terms of reference to be issued under section 24 of the Nuclear Safety and Control Act in relation to the designated project that is the subject of the report.

  • Marginal note:Duties in relation to Canadian Energy Regulator Act

    (3) A review panel established under subsection 47(1) must, in accordance with its terms of reference, include in the report that it prepares the conclusions or recommendations necessary for a certificate, order, permit, licence or authorization to be issued, a leave or an exemption to be granted or a direction or approval to be given under the Canadian Energy Regulator Act in relation to the designated project that is the subject of the report.

Marginal note:Information

  •  (1) A review panel may, when conducting the impact assessment of a designated project and preparing the report with respect to the impact assessment of the designated project, use any information that is available to it.

  • Marginal note: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 impact assessment or preparing the report with respect to the impact 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.

Marginal note:Power to summon witnesses

  •  (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 other things that the panel considers necessary for conducting its impact assessment of the designated project.

  • Marginal note:Enforcement powers

    (2) A review panel has the same power to enforce the attendance of witnesses and to compel them to give evidence and produce records and other things as is vested in a court of record.

  • Marginal note: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).

  • Marginal note: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 person or Indigenous group, the evidence, records or things are privileged and even if their disclosure is authorized under subsection 119(2) must not, without the authorization of the person or Indigenous group, knowingly be, or be permitted to be, disclosed by any person who has obtained the evidence, records or other things under this Act.

  • Marginal note: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, disclosed by any person who has obtained the evidence, records or other things under this Act.

  • Marginal note: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.

  • Marginal note:Immunity

    (7) No action or other proceeding lies 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.

Marginal note:Informal proceedings

 A review panel must, to the extent that is consistent with the general application of the rules of procedural fairness and natural justice, emphasize flexibility and informality in the conduct of hearings and in particular must allow, if appropriate, the admission of evidence that would not normally be admissible under the rules of evidence.

Marginal note:Copy posted on Internet site

 On receiving a report with respect to the impact assessment of the designated project by a review panel, the Minister must ensure that a copy of the report is posted on the Internet site.

Marginal note:Recommendations

  •  (1) The Agency must make recommendations to assist the Minister in establishing conditions under section 64 in respect of the designated project that is the subject of a report referred to in section 55.

  • Marginal note:Recommendations posted on Internet site

    (2) The Agency must post its recommendations on the Internet site.

Marginal note:Studies and collection of information

 The Minister may, before making a referral under section 61, require the proponent of the designated project to collect any information or undertake any studies that are necessary for the Governor in Council to make a determination under section 62.

Confidential Information

Marginal note:Non-disclosure

 If the Agency is of the opinion that, in respect of a review panel to which it is providing or has provided support under paragraph 156(1)(a), the disclosure of a record would reveal the substance of the panel’s deliberations in relation to an impact assessment that the panel is conducting or has conducted, the Agency may refuse to disclose the record to any person who is not a member of the review panel.

Rules in Case of Termination

Marginal note:Power to terminate

  •  (1) The Minister may terminate the assessment by a review panel of a designated project if

    • (a) he or she is of the opinion that the review panel will not submit its report within the time limit established under paragraph 37(1)(a), including any extension of that time limit; or

    • (b) the review panel fails to submit its report within that time limit, including any extension of that time limit.

  • Marginal note:Preliminary consultations

    (2) Before the Minister exercises the power referred to in subsection (1) 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 39(1), consult with the jurisdiction with which the agreement or arrangement was entered into;

    • (b) in the case of an agreement or arrangement referred to in subsection 39(3), obtain the approval of the Minister of Foreign Affairs and consult with the jurisdiction with which the agreement or arrangement was entered into; and

    • (c) in the case of a document referred to in subsection 40(2), consult with the Mackenzie Valley Environmental Impact Review Board.

  • Marginal note:Preliminary consultations — other

    (3) The Minister must, before he or she exercises the power referred to in subsection (1) with respect to one of the following review panels,

    • (a) in the case of a review panel established under subsection 44(1), consult with the President of the Canadian Nuclear Safety Commission; and

    • (b) in the case of a review panel established under subsection 47(1), consult with the Lead Commissioner of the Canadian Energy Regulator.

Marginal note:Completion of impact assessment by Agency

  •  (1) When the assessment by a review panel of a designated project is terminated under section 58, the Agency must, in accordance with directives provided by the Minister, complete the impact assessment of the designated project and prepare a report and submit it to the Minister.

  • Marginal note:Effects set out in report

    (2) The report must set out the effects that, in the Agency’s opinion, are likely to be caused by the carrying out of the designated project. It must also indicate, from among the effects set out in the report, those that are adverse effects within federal jurisdiction and those that are adverse direct or incidental effects, and specify the extent to which those effects are significant.

  • Marginal note:Report — Indigenous knowledge

    (3) Subject to section 119, the report must set out how the Agency, in determining the effects that are likely to be caused by the carrying out of the designated project, took into account and used any Indigenous knowledge provided with respect to the designated project.

Decision-Making

Marginal note:Minister’s decision

  •  (1) After taking into account the report with respect to the impact assessment of a designated project that is submitted to the Minister under subsection 28(2) or at the end of the assessment under the process approved under section 31, the Minister must

    • (a) determine whether the adverse effects within federal jurisdiction — and the adverse direct or incidental effects — that are indicated in the report are, in light of the factors referred to in section 63 and the extent to which those effects are significant, in the public interest; or

    • (b) refer to the Governor in Council the matter of whether the effects referred to in paragraph (a) are, in light of the factors referred to in section 63 and the extent to which those effects are significant, in the public interest.

  • Marginal note:Notice posted on Internet site

    (2) If the Minister refers the matter to the Governor in Council, he or she must ensure that a notice of the referral and the reasons for it are posted on the Internet site.

 
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