Second Session, 44th General Assembly 49 Elizabeth II, 2000 |
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AN ACT RESPECTING ENVIRONMENTAL ASSESSMENT |
Received and Read the First Time |
Second Reading |
Committee |
Third Reading |
Royal Assent |
HONOURABLE OLIVER LANGDON Minister of Environment and Labour |
Ordered to be printed by the Honourable House of Assembly |
EXPLANATORY NOTE The purpose of this Bill is to revise and consolidate the law with respect to environmental assessments in the province.
A BILL AN ACT RESPECTING ENVIRONMENTAL ASSESSMENT
Analysis 1. Short title 2. Definitions 3. Purpose 4. Application of Act 5. Act binds Crown 6. Prohibition 7. Registration 8. Undertaking not to proceed 9. Determination 10. Assessment committees 11. Guidelines 12. Environmental preview report 13. Environmental impact statement required 14. Release 15. Environmental impact statement 16. Proponent to meet public 17. Public interest 18. Statement received 19. Statement deficient 20. Consultation 21. Board 22. Public hearing 23. Report of hearing 24. Report delivered 25. Release 26. Authorization 27. Monitoring 28. Exemption 29. Non disclosure 30. Agreements 31. Joint review panel 32. Costs 33. Action barred 34. Order 35. Amendment and revocation of order 36. Appeal 37. Regulations 38. Fees and forms 39. Notice of registrations and decisions 40. Power included 41. Service 42. Offence 43. Penalty 44. Reclamation order 45. Transitional 46. RSN1990 cE-14 47. Commencement Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
Short title (a) "air" means air not enclosed in a building, structure, machine, chimney, stack, flue, tank, pipe or other human made structure; (b) "board" means an environmental assessment board appointed under section 21; (c) "class environmental assessment" means a planning process applied to common classes of undertakings where the environmental effects are generally known and are recurrent; (d) "committee" means an assessment committee appointed under section 10; (e) "department", unless the context indicates otherwise, means the department presided over by the minister; (f) "environment" includes (i) air, land and water, (ii) plant and animal life, including human life, (iii) the social, economic, recreational, cultural and aesthetic conditions and factors that influence the life of humans or a community, (iv) a building, structure, machine or other device or thing made by humans, (v) a solid, liquid, gas, odour, heat, sound, vibration or radiation resulting directly or indirectly from the activities of humans, or (vi) a part or a combination of those things referred to in subparagraphs (i) to (v) and the interrelationships between 2 or more of them; (g) "environmental assessment" means a process by which the environmental effect of an undertaking is predicted and evaluated before the undertaking has begun or occurred; (h) "environmental effect" means a change in the present or future environment that would result from an undertaking; (i) "environmental impact statement" means a report that presents the results of an environmental assessment; (j) "environmental preview report" means a report presenting the results of an investigation based on readily available information that supplements the information provided by a proponent upon registration of an undertaking and which is necessary to assist the minister in making a determination as to whether or not an environmental impact statement is required; (k) "guidelines" means guidelines prepared by a committee under section 11; (l) "land" includes enclosed land, surface land, land covered by water, subsoil, matter beneath the subsoil or a combination of these; (m) "minister", unless the context indicates otherwise, means the minister responsible for the administration of this Act under the Executive Council Act; (n) "person" includes an association of persons, a city, municipality and the government of the province; (o) "proponent" means a person who (i) carries out or proposes to carry out an undertaking, or (ii) is the owner or person having charge, control or management of an undertaking; (p) "undertaking" includes an enterprise, activity, project, structure, work or proposal and a modification, abandonment, demolition, decommissioning, rehabilitation and an extension of them that may, in the opinion of the minister, have a significant environmental effect; and (q) "water" includes a surface or subterranean source of fresh or salt water within the jurisdiction of the province, whether or not that source usually contains liquid or frozen water, water above the bed of the sea that is within the jurisdiction of the province, a river, stream, brook, creek, watercourse, lake, pond, spring, lagoon, ravine, gully, canal and other flowing or standing water and land usually or at any time covered by water.
Purpose (a) facilitate the wise management of the natural resources of the province; and (b) protect the environment and quality of life of the people of the province, through the institution of environmental assessment procedures before and after the commencement of an undertaking that may be potentially damaging to the environment. (2) An undertaking to which this Act applies may be designated by regulation. (3) An undertaking of the government of the province of a type specified in the regulations shall be registered under section 7. (2) A proponent shall pay the required fee with respect to the registration of an undertaking. (2) The minister shall notify the Lieutenant-Governor in Council of his or her determination under subsection (1) that the undertaking is contrary to law or a policy that the Lieutenant-Governor in Council has declared to be the policy of the government of the province and the Lieutenant-Governor in Council may direct that the undertaking not proceed. (3) The minister shall, in writing, notify the proponent of a direction under subsection (2), within the time period required by regulation. (a) an environmental preview report is required; (b) an environmental impact statement is required; or (c) the undertaking may be released. (2) The minister shall notify a proponent of an undertaking of his or her determination under subsection (1) within the time period required by regulation. (2) The minister shall appoint to a committee at least one representative from each department of government that has an interest in the undertaking. (3) The chairperson of a committee shall be an employee of the department. (4) A committee may provide the consultation and assistance necessary for the purpose of section 20. (a) environmental preview report; or (b) environmental impact statement, required for the undertaking for which the committee was appointed. (2) The minister shall approve guidelines prepared under subsection (1) before they are provided to the proponent. (2) The proponent shall, in accordance with the guidelines, prepare and submit to the minister an environmental preview report within the time period required by regulation. (3) Upon receiving an environmental preview report, the minister shall (a) require that the proponent provide copies of the environmental preview report to the minister who shall make those copies available to all interested persons; and (b) examine the report and determine if the environmental preview report complies with this Act and the guidelines, and shall, in writing, advise the proponent of his or her determination under paragraph (b). (4) Where, in the opinion of the minister, an environmental preview report is deficient, the minister may require the proponent to (a) conduct further work; (b) amend the environmental preview report; or (c) revise and submit another environmental preview report or amendment to that report, within the time period required by regulation. (5) Where, in the opinion of the minister, the environmental preview report complies with this Act and the guidelines and requires no further work, he or she shall determine whether (a) an environmental impact statement is required; or (b) the undertaking may be released. (6) The minister shall notify the proponent of his or her determination under subsection (5) within the time period required by regulation. (7) A proponent is not required to provide an environmental preview report where the proponent elects to proceed directly with the preparation of an environmental impact statement. (2) An environmental impact statement shall be completed and submitted to the minister within the time period required by regulation. (a) another Act or regulation of the province or of Canada; (b) a municipal by-law or requirement; and (c) the terms and conditions that the minister may, in his or her discretion, establish.
Environmental impact statement (a) a description of the undertaking; (b) the rationale for the undertaking; (c) the alternative methods of carrying out the undertaking, and the alternatives to the undertaking; (d) a description of the (i) present environment that will be affected or that might reasonably be expected to be affected, directly or indirectly, by the undertaking, and (ii) predicted future condition of the environment that might reasonably be expected to occur within the expected life span of the undertaking, if the undertaking was not approved; (e) a description of (i) the effects that would be caused or that might reasonably be expected to be caused to the environment by the undertaking with respect to the descriptions provided under paragraph (d), and (ii) the actions necessary or that may reasonably be expected to be necessary to prevent, change, mitigate or remedy the effects upon or the effects that might reasonably be expected upon the environment by the undertaking; (f) an evaluation of the advantages and disadvantages to the environment of the undertaking, the alternative methods of carrying out the undertaking and the alternatives to the undertaking; (g) a proposed set of control or remedial measures designed to minimize any or all significant harmful effects identified under paragraph (e); (h) a proposed program of study designed to monitor all substances and harmful effects that would be produced by the undertaking; and (i) a proposed program of public information as required under section 16.
Proponent to meet public (a) provide information concerning the undertaking to the people whose environment may be affected by the undertaking; and (b) record and respond to the concerns of the local community regarding the environmental effects of the undertaking. (2) The procedure for public contact and involvement with the proponent shall be as required by the minister and by regulation. (2) At any time during an environmental assessment of an undertaking, the minister may request that interested persons submit written comments with respect to the environmental effects of that undertaking. (3) The minister may forward written comments submitted to him or her under subsection (2) to the proponent who shall respond to those comments. (a) require that the proponent provide copies of the environmental impact statement to the minister who shall make those copies available to all interested persons; and (b) examine the statement and determine, in his or her discretion, whether or not it complies with this Act and the guidelines. (2) The minister shall, in writing, advise the proponent of his or her determination under paragraph (1)(b). (a) conduct further work; (b) amend the environmental impact statement; or (c) revise and submit another environmental impact statement or amendment to that statement, within the time period required by regulation. (2) The Lieutenant-Governor in Council shall appoint to a board not fewer than 2 nor more than 5 persons. (3) A person appointed under subsection (2) shall not be employed in the public service of the province or of Canada. (4) The Lieutenant-Governor in Council shall designate from among the members of each board a chairperson who shall not be a resident of the geographical area of the undertaking. (5) At least 1/3 of the members of each board shall be residents of the geographical area of the undertaking. (6) Members of each board shall receive remuneration and be reimbursed for expenses in the manner that the Lieutenant-Governor in Council may establish. (a) examining the contents of the environmental impact statement that has been prepared for an undertaking; and (b) exchanging information between the proponent and the public. (2) A public hearing ordered under subsection 21(1) shall be held within or adjacent to the geographical area of the undertaking and wherever the minister considers appropriate. (3) The minister and the proponent shall be represented at a public hearing of a board. (4) At a public hearing a board shall (a) record comments and questions of persons present regarding the content of the environmental impact statement prepared for an undertaking; and (b) provide, where possible, answers to questions from the persons present. (5) A public hearing of a board shall be conducted in the manner prescribed by the regulations. (a) proceedings of a public hearing; (b) recommendations made at a public hearing; and (c) recommendations of the board. Report delivered (2) The minister shall, within the time period required by regulation, after receiving the report submitted under section 23, make a copy of the report available to interested persons. (3) The manner of distribution of a report to interested persons under subsection (2) shall be in the discretion of the minister. (a) be released subject to terms and conditions; or (b) not be permitted to proceed. (2) Where a report has been delivered to the Lieutenant-Governor in Council under subsection 24(1) and, in the opinion of the minister, an environmental impact statement has been completed and complies with this Act and the guidelines, the minister shall recommend to the Lieutenant-Governor in Council that the undertaking (a) be released subject to terms and conditions; or (b) not be permitted to proceed. (3) Upon receipt of a recommendation under subsection (1) or (2), the Lieutenant-Governor in Council, in its discretion, may (a) release the undertaking subject to terms and conditions that the Lieutenant-Governor in Council may, in its discretion, specify; or (b) direct that the undertaking not proceed. (4) Notwithstanding subsection (1), (2) or (3), or another section of this Act, and subject to the approval of the Lieutenant-Governor in Council, the minister may halt further environmental assessment of an undertaking and direct that the undertaking not proceed where he or she is of the opinion that an unacceptable environmental effect is indicated. (5) Notwithstanding subsection (1), (2) or (3), or another section of this Act, the Lieutenant-Governor in Council may halt further environmental assessment of an undertaking and direct that the undertaking not proceed where the Lieutenant-Governor in Council is of the opinion that it is in the public interest to halt the assessment and make that direction. (2) This Act does not exempt a proponent of an undertaking from the requirements imposed upon an undertaking by (a) another Act or regulation of the province or of Canada; or (b) a municipal by-law or requirement.
Monitoring (a) exempt an undertaking or a proponent of an undertaking from the application of this Act or the regulations or a matter provided for in this Act, subject to the terms and conditions that the minister may, in his or her discretion, impose; (b) suspend or revoke an exemption referred to in paragraph (a); or (c) alter or revoke a term or condition of an exemption referred to in paragraph (a). Non disclosure (2) Notwithstanding section 4, the minister may, with the approval of the Lieutenant-Governor in Council, enter into an agreement with the government of another province or territory, of Canada, or with a combination of them, with respect to the conduct of environmental assessments in accordance with a uniformly applied process. (3) Where an agreement is entered into under this section, this Act or a provision of this Act, or the regulations, shall apply in accordance with the agreement only and the process established by that agreement shall be considered to satisfy the requirements of this Act or the regulations. (4) The Lieutenant-Governor in Council may, in its discretion, (a) release an undertaking that is the subject of an agreement made under this section subject to terms and conditions that the Lieutenant-Governor in Council considers necessary; or (b) direct that the undertaking not proceed. (5) Where an agreement is entered into under this section, an undertaking that is subject to that agreement shall not proceed unless the Lieutenant-Governor in Council has released that undertaking. (2) The proponent shall pay the costs incurred by the Crown with respect to the conduct of an environmental assessment of an undertaking carried out in accordance with an agreement made under section 30 and under a review panel established under subsection (1). (2) Notwithstanding subsection (1), where a fee does not cover the costs incurred by the Crown, the proponent shall pay those costs owed to the Crown with respect to the environmental assessment of the proponent's undertaking that the minister may require. (3) Where a proponent does not pay the fees referred to in subsection (1) or the costs referred to in subsection (2), the minister may direct that an environmental assessment cease until the minister notifies the proponent that the assessment may proceed. (4) For the purpose of this section and section 31, "costs" includes the cost and expense of consultants, lodging, meals, salaries, remuneration and travel incurred by the government of the province, and a board or committee, with respect to the conduct of an environmental assessment of an undertaking. (2) Notwithstanding subsection 5(4) of the Proceedings Against the Crown Act, the liability of the Crown with respect to anything done or omitted to be done by an officer or an employee of the department, a member of a board or committee or other person in the performance of his or her duties under this Act or the regulations is the same as if subsection (1) were not in force. (a) stop or shut down an undertaking; and (b) do all things and take all steps necessary to comply with this Act, the regulations and the terms or conditions applicable to the undertaking, in accordance with directions set out in the order, and the minister shall serve on the person a copy of the order and a statement showing the reasons for the making of the order and upon receipt of the copy and statement, the person shall comply with that order. (2) In addition to an order that the minister may make under subsection (1), the minister may make an order directing the person referred to in that subsection to (a) take the action the minister considers necessary to remedy or prevent an environmental effect; and (b) post a bond or other form of security acceptable to the minister or pay money to the Crown in an amount that will ensure compliance with an order made under this section. (3) The minister may authorize an official, officer or employee of the department to issue an order under subsection (1) or (2). (4) An order made under this section remains in effect until it is revoked by the minister. (a) amend a term or condition of, add a term or condition to, or delete a term or condition from an order; (b) revoke an order; and (c) correct a typographical error in an order. (2) A copy of an order amended, corrected or revoked under subsection (1) shall be served within the time required by regulation on the person to whom the original order was directed and served. (2) Notwithstanding a rule or practice to the contrary, a notice of appeal shall (a) set out in detail the allegations of the appellant and the grounds upon which the order is appealed against; and (b) be signed by the appellant or the appellant's solicitor. (3) An appellant shall, within 14 days after the service of the notice of appeal under this section, apply to a judge for the appointment of a day for the hearing of the appeal and shall, not fewer than 14 days before the hearing, serve upon the minister or deputy minister a written notice of the day appointed for the hearing. (4) The minister shall produce before the judge hearing the appeal all papers and documents in his or her possession affecting the matter of the appeal. (5) The judge shall hear the appeal and the evidence brought forward by the appellant and the Crown in a summary manner and shall decide the matter of the appeal by (a) upholding, amending or revoking the order; or (b) making another decision that judge considers proper in the circumstance. (6) A judge may make an order as to costs for or against the appellant or the Crown and may fix the amount of those costs. (7) An appeal may be taken from a decision of a judge of the Trial Division to the Court of Appeal on a point of law raised upon the hearing of the appeal by the judge of the Trial Division. (8) The filing of a notice of appeal under subsection (1) shall not affect the order appealed from and the order shall remain in force pending the outcome of the appeal. (a) defining a word for the purpose of the Act; (b) designating undertakings and classes of undertakings to which this Act applies; (c) prescribing the manner of preparation and submission of and information contained in registrations, environmental preview reports, and environmental impact statements; (d) establishing criteria for the examination of undertakings in order to determine whether an environmental impact statement is required, an environmental preview report is required or the undertaking may be released; (e) respecting the manner in which registrations, environmental preview reports and environmental impact statements and comments and responses to them are to be produced, submitted, reproduced, and disseminated, including electronic and other technological means and respecting component studies of environmental impact statements; (f) prescribing time periods by which notices, submissions, orders, procedures, commencements of undertakings and other actions expire or are to be carried out and prescribing when reregistrations, extensions and agreements with respect to the time periods may apply; (g) prescribing duties and qualifications of board and committee members and procedures with respect to boards, committees and public hearings under the Act; (h) prescribing methods and procedures by which the members of the general public may be involved in environmental assessments and the manner in which the proponent or his or her agent shall meet with, provide information to, and record the opinions, concerns and questions of, interested persons; (i) exempting a person, class of persons, undertaking or class of undertakings from this Act or a section of this Act; (j) providing for the requirements, design and implementation of environmental monitoring and rehabilitation programs in respect of undertakings; (k) respecting the posting of a bond or the provision of another form of security as a condition of a release; (l) respecting class environmental assessments; (m) respecting agreements made under this Act; and (n) generally to give effect to the purpose of this Act. Fees and forms (2) The power to exempt or release an undertaking under this Act subject to terms and conditions includes the power to require, as a term or condition, the posting of a bond or another form of security by the proponent of that undertaking. (2) Where a person to whom a notice, order, approval or other document is to be given or served as described in subsection (1) is a corporation, it shall be considered to be sufficiently given or served where delivered personally to a director or chief executive officer of that corporation. (a) provides false or misleading information in respect of a requirement under this Act or the regulations to provide information; (b) does not provide information as required under this Act or the regulations; (c) hinders or obstructs a person who is exercising powers or carrying out duties under this Act or the regulations; (d) does not comply with an order or direction made under this Act or the regulations by the minister or the Lieutenant-Governor in Council; (e) does not comply with a term or condition imposed under this Act or the regulations in respect of an undertaking; and (f) otherwise contravenes this Act or the regulations, is guilty of an offence. (2) Each continuance for a day or a part of a day of an offence referred to in subsection (1) constitutes a separate offence. (a) in the case of a person who is not a corporation to a fine of not less than $1,000 and not more than $50,000 and, in default of payment, to imprisonment for a term not exceeding 6 months, or to both the fine and imprisonment; and (b) in the case of a corporation, to a fine of not less than $5,000 and not more than $1,000,000. (2) A person who is convicted of a subsequent offence under section 42 that is a violation of the same paragraph of that subsection for which the person was convicted of a first offence is liable on summary conviction (a) in the case of a person who is not a corporation to a fine of not less than $3,000 and not more than $50,000 and, in default of payment, to imprisonment for a term not exceeding 6 months, or to both the fine and imprisonment; and (b) in the case of a corporation, to a fine of not less than $15,000 and not more than $1,000,000. (3) Where a corporation commits an offence under section 42, a person who is an officer, director or agent of the corporation and who directed, authorized, assented to, acquiesced in or participated in that offence is liable, on summary conviction, to the punishments provided in paragraphs (1)(b) and (2)(b) and, in default of payment of the fines imposed under those paragraphs, the court may impose upon that person a term of imprisonment not exceeding 6 months. (a) take the action the court considers necessary to remedy or prevent an environmental effect that results or may result from the act that constituted the offence; and (b) post a bond or other form of security acceptable to the court or pay money into court in an amount that will ensure compliance with an order made under this section.
Transitional
ŠEarl G. Tucker, Queen's Printer |