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

Interpretation

Marginal note:Definitions

• 1 (1) The following definitions apply in these Regulations.

  Act

  Act means the First Nations Oil and Gas and Moneys Management Act. (Loi)

  assessment by a review panel

  assessment by a review panel means an environmental assessment conducted in accordance with sections 40 to 42. (examen par une commission)

  comprehensive study

  comprehensive study means an environmental assessment conducted in accordance with sections 23 to 26. (étude approfondie)

  follow-up program

  follow-up program, in respect of a project, means a program for

  • (a) verifying the accuracy of the project’s environmental assessment; and

  • (b) determining the effectiveness of any measures taken to mitigate the adverse environmental effects of the project. (programme de suivi)

  mediation

  mediation means an environmental assessment conducted with the assistance of a mediator in accordance with sections 35 to 38. (médiation)

  mitigation measures

  mitigation measures, in respect of a project, means the elimination, reduction or control of the adverse environmental effects of the project, and includes restitution for any damage to the environment caused by those effects through replacement, restoration, compensation or any other means. (mesures d’atténuation)

  proponent

  proponent, in respect of a project, means the person, body or government that proposes the project. (promoteur)

  record

  record means any documentary material, regardless of medium or form. (document)

  registry

  registry, in respect of a first nation, means a public registry established by the first nation under section 49. (registre)

  screening

  screening means an environmental assessment conducted in accordance with sections 13 and 14. (examen préalable)

  test drilling

  test drilling means an evaluation well or test hole drilled for the primary purpose of determining subsurface lithology and obtaining geological or geophysical information. (sondage)

• Marginal note:Precautionary principle

  (2) In the administration of a first nation’s oil and gas law made in relation to environmental assessment, the decision-making authority and the council of the first nation shall exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.

• Marginal note:Duty to consult if council not decision-making authority

  (3) If the council of the first nation is not the decision-making authority under the first nation’s oil and gas law, the council of the first nation shall, before exercising any power referred to in paragraph 8(b), section 9 or 10, paragraph 11(1)(e), section 31, paragraph 34(1)(a), subsection 35(2), paragraph 39(1)(a) or subsection 40(2), consult with the decision-making authority, in addition to any other persons or bodies with whom it has a duty to consult under those provisions.

Marginal note:Content of oil and gas laws

2 For the purposes of subsection 63(1) of the Act, a first nation’s oil and gas law made in relation to environmental assessment shall include the rules set out in sections 1, 3 and 5 to 54, with any adaptations of form and reference that will facilitate the incorporation of those rules into the first nation’s oil and gas law.

Exploration Activities

Marginal note:Exploration activities

3 For the purpose of paragraph (b) of the definition “project” in subsection 2(1) of the Act, any proposed geophysical examination or test drilling is a project for the purposes of environmental assessments.

Exempted Projects

Marginal note:Exempted projects

4 A first nation may, in its oil and gas law, exempt from environmental assessment any class of project that is set out in the Exclusion List Regulations, 2007, other than those listed in Schedules 2 and 3 to those Regulations, that relates to installations used for oil or gas exploration or exploitation.

General

Marginal note:Timing of assessment

5 If an environmental assessment of a project is required, the decision-making authority shall ensure that it is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made by the decision-making authority.

Marginal note:No power, etc., to be exercised until assessment is complete

6 A decision-making authority shall not permit a project, for which an environmental assessment is required, to proceed unless it makes a decision under paragraph 16(1)(a), 28(1)(a) or (b) or 44(1)(a) or (b).

Marginal note:Environmental assessment process

7 The environmental assessment process shall include, if applicable,

• (a) a screening or comprehensive study and the preparation of a screening report or comprehensive study report;

• (b) a mediation or an assessment by a review panel and the preparation of a mediation report or a review panel report; and

• (c) the design and implementation of a follow-up program.

Marginal note:Scope of project

8 The scope of the project for which an environmental assessment is to be conducted shall be determined

• (a) by the decision-making authority; or

• (b) if the project is referred to a mediator or a review panel, by the council of the first nation.

Marginal note:Same assessment for related projects

9 For the purposes of conducting an environmental assessment in respect of two or more projects, the decision-making authority or, if at least one of the projects is referred to a mediator or a review panel, the council of the first nation may determine that the projects are so closely related that they can be considered to form a single project.

Marginal note:All proposed undertakings to be considered

10 If a project concerns an installation used for oil or gas exploration or exploitation, the environmental assessment shall be conducted for any construction, operation, modification, decommissioning, abandonment or other undertaking during the life-cycle of that installation that is proposed by the proponent as well as any construction, operation, modification, decommissioning, abandonment or other undertaking during the life-cycle of that installation that, in the opinion of the decision-making authority or, if the project is referred to a mediator or a review panel, of the council of the first nation, is likely to be carried out in relation to that installation.

Marginal note:Factors that must be considered

• 11 (1) Each environmental assessment of a project shall consider the following factors:

  • (a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project, and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be undertaken;

  • (b) the significance of those environmental effects;

  • (c) any comments from the public that are received in accordance with the first nation’s oil and gas law;

  • (d) technically and economically feasible measures that would mitigate any significant adverse environmental effects of the project; and

  • (e) any other matter relevant to a screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, whose consideration may be required by the decision-making authority or, except in the case of a screening, the council of the first nation.

• Marginal note:Factors that may be considered

  (2) The environmental assessment may also consider community knowledge and aboriginal traditional knowledge.

Marginal note:Source of information

12 Any available information may be used in conducting the screening or comprehensive study of a project but, if a decision-making authority is of the opinion that the information available is not adequate to enable it to make a decision, it shall ensure that any studies and information that it considers necessary for that purpose are undertaken or collected.

Screening Process

Screening

Marginal note:Screening

• 13 (1) The decision-making authority shall ensure that a screening of every project is conducted and a screening report is prepared.

• Marginal note:Exceptions

  (2) Subsection (1) does not apply to a project referred to in section 4 that the first nation has exempted under its oil and gas law or to a project set out in the schedule.

• Marginal note:Scope of factors

  (3) In respect of a screening, the scope of the factors to be considered under paragraphs 11(1)(a), (b) and (d) and subsection 11(2) shall be determined by the decision-making authority.

Marginal note:Public participation

14 If there are circumstances surrounding a project that would make the project of interest to the public, the decision-making authority

• (a) shall, before providing the public with an opportunity to examine and comment on the screening report, post on the Internet site referred to in section 49 a description of the scope of the project and either a description of the factors to be considered in the screening and their scope, or an indication of how a copy of the description of those factors and their scope may be obtained;

• (b) shall, before making a decision under section 16, give the public an opportunity to examine and comment on the screening report and any record relating to the project that has been included in the registry and shall give adequate notice of that opportunity; and

• (c) may, at any stage of the screening, give the public any other opportunity to participate in and comment on the screening.

Decision of the Decision-making Authority After Screening

Marginal note:Time for decision

15 A decision-making authority shall not make any decision under subsection 16(1) before the 15th day after the day on which the following are posted on the Internet site referred to in section 49:

• (a) the notice of the commencement of the environmental assessment process;

• (b) the description of the scope of the project; and

• (c) if the decision-making authority gives the public an opportunity to examine and comment on the screening report and any record relating to the project that has been included in the registry, the description of the factors to be considered in the environmental assessment and their scope, or an indication of how a copy of the description may be obtained.

Marginal note:Decision-making authority decision — screening

• 16 (1) After considering the screening report and any comments from the public and taking into account the implementation of any technically and economically feasible mitigation measures, the decision-making authority shall make one of the following decisions:

  • (a) the project is not likely to cause significant adverse environmental effects;

  • (b) the project is likely to cause significant adverse environmental effects that may be justified in the circumstances;

  • (c) the project is likely to cause significant adverse environmental effects that cannot be justified in the circumstances;

  • (d) it is uncertain that the project is likely to cause significant adverse environmental effects; or

  • (e) public concerns warrant a referral to a mediator or a review panel.

• Marginal note:Mitigation measures — extent of authority

  (2) The mitigation measures that may be taken into account are those measures

  • (a) whose implementation the decision-making authority can ensure; or

  • (b) that the decision-making authority is satisfied will be implemented by another person or body.

Marginal note:Undertaking project, implementing mitigation measures

17 If a decision-making authority makes a decision under paragraph 16(1)(a), it may exercise any power or perform any duty or function that would permit the project to be undertaken in whole or in part, and it shall ensure that any mitigation measures that it has taken into account and that are referred to in paragraph 16(2)(a) are implemented and that a follow-up program, if appropriate for the project, is designed and implemented.

Marginal note:Referral to mediator or to a review panel

18 If the decision-making authority makes a decision under paragraph 16(1)(b), (d) or (e), it shall refer the project to the council of the first nation, which shall refer it to either a mediator or a review panel.

Marginal note:Prohibition

19 If a decision-making authority makes a decision under paragraph 16(1)(c), it shall not exercise any power or perform any duty or function that would permit the project to be undertaken in whole or in part.

Comprehensive Study Process

General

Marginal note:Specific projects

20 Sections 21 to 30 apply to a project set out in the schedule.

Marginal note:Public consultation

• 21 (1) The decision-making authority shall ensure that there is public consultation in respect of

  • (a) the proposed scope of the project for the purposes of the environmental assessment;

  • (b) the factors proposed to be considered in the environmental assessment and their proposed scope; and

  • (c) the ability of a comprehensive study to address issues relating to the project.

• Marginal note:Report and recommendation

  (2) After the public consultation, as soon as the decision-making authority has sufficient information to do so, it shall, if the council of the first nation is not the decision-making authority,

  • (a) report to the council of the first nation in respect of

    • (i) the scope of the project,

    • (ii) the factors to be considered in the environmental assessment and their scope,

    • (iii) public concerns in relation to the project,

    • (iv) the potential of the project to cause adverse environmental effects, and

    • (v) the ability of a comprehensive study to address issues relating to the project; and

  • (b) recommend to the council of the first nation that it refer the project to

    • (i) the decision-making authority to ensure that a comprehensive study is conducted and that a comprehensive study report is prepared and provided to the council of the first nation, or

    • (ii) a mediator or a review panel.

Marginal note:Referral of project

22 The council of the first nation — taking into account the report and recommendation of the decision-making authority if the council of the first nation is not the decision-making authority, or taking into account the matters referred to in subparagraphs 21(2)(a)(i) to (v) if the council of the first nation is the decision-making authority and has sufficient information to do so — shall decide

• (a) if the council of the first nation is not the decision-making authority, to refer the project to the decision-making authority so that a comprehensive study is conducted and that a comprehensive study report is prepared and provided to the council of the first nation;

• (b) if the council of the first nation is the decision-making authority, to ensure that a comprehensive study is conducted and that a comprehensive study report is prepared; or

• (c) to refer the project to a mediator or a review panel.