Annex for Integrated Impact Assessments
Between
the Impact Assessment Agency of Canada
– and –
the Canadian Energy Regulator

Annex 7 — Generic Terms of Reference for a Project-Specific Integrated Impact Assessment

General

This Annex is governed by the understandings as described in the Memorandum of Understanding (MOU) between the Impact Assessment Agency of Canada (the Agency) and the Canadian Energy Regulator (CER). Pursuant to the MOU and under the terms of this Annex, the Agency and the CER (each a “party” or jointly “the parties”) agree to respect this Annex. This Annex is intended to be read in conjunction with the MOU.

Purpose

This Annex provides generic terms of reference as a basis for the development of future project-specific terms of reference for integrated review panels established under the Impact Assessment Act (IAA) in relation to an assessment of a designated project that also includes physical activities regulated under the Canadian Energy Regulator Act (CERA).

The participants agree that the details of the generic terms of reference can be modified, as required, to suit the specific requirements of each integrated impact assessment.

Legislative Provisions

Subsection 47(1) of the IAA will require the Minister of the Environment and Climate Change (Minister) to establish Terms of Reference for an integrated review panel with the CER.

Section 49 of the IAA will require the Minister, in establishing terms of reference, to consider, among other things, the Summary of Issues and any information or knowledge made available by a federal authority, as provided by the Agency to the proponent during the Planning phase.

Subsections 51(1) and 51(3) of the IAA outlines the duties of an integrated review panel established with the CER under section 47 of the IAA.

Points of Contact

The CER and the Agency will each identify a point of contact to develop project-specific Terms of Reference.

The CER point of contact is the hearing manager for the designated project. The Agency point of contact is the panel manager for the review of the designated project. Each participant will ensure that up-to-date contact information for the points of contact are made available to each other.

Template: Integrated Review Panel Terms of Reference

Integrated Review Panel Terms of Reference - Generic
[Project Name] Project

Definitions

Definitions of terms used in these Terms of Reference are listed in Appendix 1.

Part 1: Descriptionof the Project

1.1. [xxx] (the proponent) proposes to develop and operate the [name of Project] located [xx] kilometres (km) [direction, e.g. southwest] of [known community, province]. The Project consists of

[summary project description]

Part 2: Scope of Assessment by the Integrated Review Panel

2.1. The Integrated Review Panel (the Panel) will conduct an assessment of the effects of the Project referred to in the Scope of the Project (Part 1) in a manner consistent with the requirements of the Impact Assessment Act (the IA Act), the Canadian Energy Regulator Act (CER Act) and these Terms of Reference.

2.2. The assessment by the Panel will include a consideration of the factors listed in subsection 22(1) of the Act:

  1. a) the changes to the environment or to health, social or economic conditions and the positive and negative consequences of these changes that are likely to be caused by the carrying out of the designated project, including:
    1. (i) the effects of malfunctions or accidents that may occur in connection with the designated project;
    2. (ii) any cumulative effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out; and
    3. (iii) the result of any interaction between those effects;
  2. b) mitigation measures that are technically and economically feasible and that would mitigate any adverse effects of the designated project;
  3. c) the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;
  4. d) the purpose of and need for the designated project;
  5. e) alternative means of carrying out the designated project that are technically and economically feasible, including through the use of best available technologies, and the effects of those means;
  6. f) any alternatives to the designated project that are technically and economically feasible and are directly related to the designated project;
  7. g) Indigenous knowledge provided with respect to the designated project;
  8. h) the extent to which the designated project contributes to sustainability;
  9. i) the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change;
  10. j) any change to the designated project that may be caused by the environment;
  11. k) the requirements of the follow-up program in respect of the designated project;
  12. l) considerations related to Indigenous cultures raised with respect to the designated project;
  13. m) community knowledge provided with respect to the designated project;
  14. n) comments received from the public;
  15. o) comments from a jurisdiction that are received in the course of consultations conducted under section 21 of the Act;
  16. p) any relevant assessment referred to in section 92, 93 or 95 of the Act;
  17. q) any assessment of the effects of the designated project that is conducted by or on behalf of an Indigenous governing body and that is provided with respect to the designated project;
  18. r) any study or plan that is conducted or prepared by a jurisdiction — or an Indigenous governing body not referred to in paragraph (f) or (g) of the definition jurisdiction in section 2 of the Act — that is in respect of a region related to the designated project and that has been provided with respect to the project; and
  19. s) the intersection of sex and gender with other identity factors.

2.3. The assessment by the Panel will also include a consideration of the factors listed in section [183(2) OR 262(2) OR 298(3)] of the CER Act:

  1. a) the environmental effects, including any cumulative environmental effects;
  2. b) the safety and security of persons and the protection of property and the environment;
  3. c) the health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors;
  4. d) the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes;
  5. e) the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;
  6. f) the availability of oil, gas or any other commodity to the pipeline;
  7. g) the existence of actual or potential markets;
  8. h) the economic feasibility of the pipeline;
  9. i) the financial resources, financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline;
  10. j) the extent to which the effects of the pipeline hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change;
  11. k) any relevant assessment referred to in section 92, 93 or 95 of the Impact Assessment Act; and
  12. l) any public interest that the Commission considers may be affected by the issuance of the certificate [or authorization] or the dismissal of the application.

2.4. In addition to the factors listed above, pursuant to paragraph 22(1)(t), the Agency requires the following matters that are relevant to the impact assessment to be taken into account:

  1. a) [insert as necessary]

2.5. The scope of the factors set out in articles 2.2 and 2.3 to be considered in the impact assessment of the Project are outlined in the “Tailored Impact Statement Guidelines for the [project name] Project” , issued by the Agency, in consultation with the Canadian Energy Regulator, on [date].

Part 3: Supporting the Integrated Review Panel

3.1. The Agency and the CER will establish a Secretariat to support the Panel in its duties during the impact statement phase.

3.2. The Secretariat will be composed of appropriate staff from the CER and the Agency and will provide administrative, technical and procedural support to the Panel.

3.3. The Secretariat will report to the Panel and will be structured to allow the Panel to conduct the impact assessment in an efficient and cost-effective manner.

Part 4: Mandate of the Integrated Review Panel

4.1. The Panel will conduct an assessment of the potential effects of the Project in a manner consistent with the requirements of the IA Act, the CER Act and these Terms of Reference.

4.2. In accordance with subsection 51(1) of the IA Act, the Panel must:

  1. a) conduct an impact assessment of the designated project;
  2. b) ensure that the information that it uses when conducting the impact assessment is made available to the public;
  3. c) hold hearings in a manner that offers the public an opportunity to participate meaningfully, in the manner that the Panel considers appropriate and within the time period it specifies, in the impact assessment;
  4. d) prepare a report with respect to the impact assessment that
    1. i. sets out the effects that, in the opinion of the Panel, are likely to be caused by the carrying out of the designated project
    2. 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,
    3. iii. subject to section 119, sets out how the 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,
  5. e) set out a summary of any comments received from the public;
  6. f) set out the Panel’s rationale, conclusions and recommendations, including conclusions and recommendations with respect to any mitigation measures and follow-up program;
  7. g) submit the report with respect to the impact assessment to the Minister; and
  8. h) on the Minister’s request, clarify any of the conclusions and recommendations set out in its report with respect to the impact assessment.

4.3. A Panel established under subsection 47(1) must include in its report 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 CER Act in relation to the designated project.

4.4. The Panel will have all the powers and duties of a panel described in section 53 of the IA Act as well the powers conferred on the Commission that is referred to in subsection 26(1) of the CER Act.

4.5. The Panel will use the information collected during the impact assessment process, including any information collected prior to its appointment during the Planning Phase or Impact Statement Phase, to conduct its assessment.

4.6. The Crown will consult with and, where appropriate, accommodate Aboriginal peoples regarding the potential adverse impacts of its decision on potential or established Aboriginal or Treaty rights. Aboriginal consultation is integrated with the impact assessment and regulatory processes to the extent possible.

4.7. Through these Terms of Reference, the Panel is mandated to:

4.7.1. INSERT

4.7.2. The Panel will ensure that Indigenous groups are provided an opportunity to meaningfully participate in the impact assessment process, including, but not limited to the following:

  • holding public hearing sessions in the communities of potentially affected Indigenous groups;
  • as requested, providing interpretation services into Indigenous languages during the public hearing where practical and available;
  • considering the timing of traditional activities by potentially affected Indigenous groups in scheduling the public hearing; and
  • as requested, translating the executive summary of its report into relevant Indigenous languages, assuming such services are available.

4.7.3. Pursuant to its mandate as outlined in its Terms of Reference and the requirements of the IA Act, the Panel will provide conclusions and recommendations in its Report regarding the potential impacts of the designated project on Indigenous peoples and Aboriginal or Treaty rights, including measures to mitigate any adverse impacts.

Part 5: Principles of Public Engagement and Participation

5.1. The Panel will be responsible for designing its approach to public engagement taking into consideration the principles regarding meaningful engagement included in its Terms of Reference.

5.2. Insert appropriate principles as outlined in Public Participation Plan

Part 6: Key Steps in the Impact Statement Phase and Impact Assessment Phase

6.1. During the Impact Statement Phase, which includes the period between the issuance of the final Tailored Impact Statement Guidelines to the proponent and the determination by the Agency that the Impact Statement / Integrated Application contains the required information or studies, the Panel may have a role in advising the Agency and the CER on whether the Impact Statement / Integrated Application contains the required information and studies.

6.2. During the Impact Assessment Phase, which includes the period of time from the determination by the Agency that the Impact Statement / Integrated Application contains the required information or studies until posting of the Agency’s recommendations to assist the Minister in establishing conditions, the Panel will be responsible for the conduct of the impact assessment, including the following:

  • undertake a public review of the Impact Statement / Integrated Application as set out in articles xxx;
  • conduct a public hearing as set out in articles xx; and
  • prepare and submit a report to the Minister and Minister of Natural Resources Canada (Minister of NRCan) as set out in articles xxx, which includes any Reasons for Decision or recommendations required for an authorization, pursuant to the CER Act.

6.3. As may be required in order to meet the overall time limit referred to in article xxx, the Panel may modify any of the interim timelines referred to in articles xxx to xxx of these Terms of Reference.

Impact Statement Phase

6.4. The proponent will prepare and submit to the Agency and the CER an Impact Statement / Integrated Application that contains, to the satisfaction of the Agency, all the information or studies set out in the Final Tailored Impact Statement Guidelines issued by the Agency at the end of the Planning Phase.

6.4.1. The proponent will have three years from the issuance of the final Tailored Impact Statement Guidelines to prepare and submit its satisfactory Impact Statement to the Agency and the CER.

6.4.2. If more time is required to prepare a satisfactory Impact Statement / Integrated Assessment, the proponent will notify the Agency and the CER in writing and request an extension of this time limit.

6.5. The Agency, in collaboration with the CER, will undertake a review of the Impact Statement / Integrated Application to determine whether the information and studies specified in the final Tailored Impact Statement Guidelines have been received from the proponent. The review will be completed within xx days.

6.5.1. The Agency will invite comments from federal and provincial authorities and Indigenous groups, or others as required. A xx day period will be provided to receive any advice. Any advice received will be posted on the Public Registry.

6.5.2. The Agency may, as appropriate, invite the Panel to review the Impact Statement / Integrated Application and provide the Agency and the CER with its views as to whether the information and studies specified in the final Tailored Impact Statement Guidelines have been received from the proponent. The Panel will provide its advice within the timeframe established by the Agency, in consultation with the CER. The advice provided by the Panel will be posted on the Public Registry.

6.5.3. Taking into consideration the advice received from the Panel, the federal and provincial authorities and Indigenous groups or others, as relevant and appropriate, the Agency and the CER will determine whether the required information and studies have been received from the proponent.

6.6. If the Agency and CER determine that the Impact Statement / Integrated Application does not contain the required information and studies, additional information will be required from the proponent. At the same time, the Agency’s notice to the proponent will be posted on the Public Registry.

6.7. Upon its submission to the Agency and the CER, the additional information provided by the proponent will be placed on the Public Registry.

6.7.1. If necessary, the Agency, in consultation with the CER, may request input from the federal and provincial authorities and Indigenous groups or others on the additional information.

6.7.2. The Agency may invite the Panel to review any additional information provided by the proponent and provide the Agency and the CER with its views as to whether the Impact Statement / Integrated Application, as supplemented by the additional information, contains the required information and studies. The Panel will provide its advice within the timeframe established by the Agency, in consultation with the CER. The advice provided by the Panel will be posted on the Public Registry.

6.7.3. Taking into consideration the advice received from the Panel, the federal and provincial authorities and Indigenous groups or others, as relevant and appropriate the Agency and CER will determine whether the required information and studies have been received from the proponent.

6.8. The procedures described in articles xxx and xx will apply, with the necessary adjustments, until such time as the Agency and the CER determine that the Impact Statement / Integrated Application adequately addresses the requirements of the Guidelines, such that the Impact Statement / Integrated Application is adequate to submit to the Panel for a more detailed review. The advice received from the Panel, the federal and provincial authorities and Indigenous groups or others, as relevant and appropriate, will be considered in making this determination.

6.9. A notice will be posted on the Public Registry when the Agency, in consultation with the CER, is satisfied that the proponent has provided it with all of the requested information or studies.

6.10. Within 45 days of the posting of the notice referred to in xxx, the Minister must establish the Review Panel’s Terms of Reference, in consultation with the Lead Commissioner of the CER.

6.11. The Panel’s assessment of the sufficiency of the Impact Statement as generally described in articles 6.14 to 6.20 is not affected or altered by the review of the Impact Statement / Integrated Application by the Agency and the CER.

Impact Assessment Phase

6.12. The Panel will undertake its assessment within [300-600] days, as established by the Agency under section 37.1 of the IAA. This time limit will only be suspended as described in the Information Requirements and Time Management Regulations.

6.13. The Panel will issue directions on procedures in accordance with the IAA, CERA, and the provisions of these Terms of Reference. The directions on procedures will include the Panel’s procedures for the integrated assessment process including the conduct of its review of the Impact Statement / Integrated Application, communication with the Panel, procedures for the conduct of the public hearing, and/or any other matter the Panel deems appropriate.

6.14. Following the posting of the notice referred to in xxx, the Panel will initiate a public comment period of no less than xx days. Indigenous groups, the public, government authorities, and other participants may submit within that period of time comments to the Panel on whether the information available in relation to the assessment of the project is sufficient for the purpose of scheduling the public hearing. Any comments received will be posted on the Public Registry unless otherwise determined by the Panel.

6.15. If the Panel determines that there is not sufficient information to proceed to a public hearing, it may require additional information to be provided by the proponent or other participants. At the same time, the Panel will place the request on the Public Registry.

6.16. Upon its submission to the Panel, the additional information provided by the proponent or other participants will be placed on the Registry Internet Site and REGDOCs. The Panel may commence, at its discretion, a xx-day public comment period on the additional information provided by the proponent.

6.17. The procedures described in articles xxx and xxx will apply, with the necessary adjustments, until such time as the Panel determines it has sufficient information to proceed to a public hearing.

6.18. Taking into consideration the record of the review, including any comments received and its own review of the Impact Statement / Integrated Application, the Panel will determine if it has sufficient information to proceed to the public hearing.

6.19. Prior to the public hearing, the Panel will release a list of potential conditions that could be included in any certificate issued under the CERA in the event that the Project is allowed to proceed. Participants and the proponent will be given the opportunity to provide comments whether the potential conditions are sufficient to address identified impacts or issues and concerns arising from the Project.

Public Hearing

6.20. The Panel will issue draft procedures for the conduct of the public hearing. These procedures will allow for the public hearing to be open to the public and will seek to emphasize flexibility and informality, and be conducted in a manner that offers all interested participants an opportunity to participate in the hearing process, as deemed appropriate.

6.21. Upon determination that there is sufficient information to proceed to a public hearing, the Panel will announce the public hearing. The Panel will provide xxxx days notice prior to the start of the public hearing.

6.22. The Panel will, where practicable, hold the public hearing in the communities in closest proximity to the Project, including Indigenous communities, to provide convenient access for potentially affected Indigenous groups and local communities.

6.23. The Panel will, to the extent possible, take into account the timing of traditional activities in local Indigenous communities when setting the time and location of the public hearing session(s).

6.24. The Panel will use its best efforts to complete the public hearing and close the record of the review as efficiently as is reasonable.

Impact Assessment Report

6.25. Following the close of the record of the review, the Panel will prepare and submit to the Minister and the Minister of NRCan a report as required in article xxx.

6.26. The Impact Assessment Report will include the conclusion of the Panel on whether the Project is in the public interest for the purposes of issuing a certificate of public convenience and necessity under the CERA.

6.27. The report will reflect the views of each member of the Panel.

6.28. The Panel will submit with its report an executive summary in both official languages of Canada.

6.29. The Panel must consider any requests made by Indigenous groups to have the executive summary of the report translated into their Indigenous languages. If the Panel agrees with such a request, the Agency must endeavor to provide any such translations in a timely manner.

6.30. In order to meet the timeline referred to in article xxx, the Panel will submit its report to the Minister and Minister of NRCan at the earliest possible date, and within the overall time limit established for it to conduct its work and prepare its report.

6.31. Upon receiving the report submitted by the Panel, the Minister will make the report available to the public and will advise the public that the report is available.

6.32. In accordance with section 51(1)(f) of the IAA, the Panel may be required to clarify any of the conclusions and recommendations set out in its report with respect to the impact assessment.

Part 7: Specialist Advisors to the Panel

7.1. The Panel may request specialist or expert information or knowledge with respect to the Project from federal authorities in possession of such information or knowledge. Any such information received from federal authorities will be provided on the record of the review.

7.2. The Panel may also retain the services of independent non-government experts to provide advice on certain subjects within the Panel’s Terms of Reference.

7.3. The names of the experts retained by the Panel and any documents obtained or created by the experts and that are submitted to the Panel will be placed on the Public Registry. For greater certainty, this will exclude any information subject to solicitor-client privilege where the expert is a lawyer.

7.4. The Panel may require any expert referred in articles 7.1 and 7.2 to appear before the Panel at the public hearing and testify in regards to the documents they have created or obtained and that were submitted to the Panel and made public in accordance with the preceding articles.

7.5. The Panel may also make use of an independent science review, as outlined in Agency policy “xxx”.

Part 8: Clarifying or Amending the Terms of Reference

8.1. The Panel may request clarification of its Terms of Reference by sending a letter signed by the chairperson to the President of the Agency and the Lead Commissioner of the CER setting out the request. Upon receiving such a request, the President of the Agency is authorized to act on behalf of the Minister and collaborate with the CER to provide to the Panel such clarification. The President of the Agency and the Lead Commissioner of the CER will use best efforts to provide a response to the Panel within 14 calendar days. The Panel will continue with the review to the extent possible while waiting for the response in order to adhere to the time limits established for the impact assessment. The Panel will notify the public of any clarifications to its Terms of Reference. Any requests for clarification under this article, as well as any response, will be posted on the Public Registry.

8.2. The Panel may seek an amendment to its Terms of Reference by sending a letter signed by the chairperson to the Minister and the Lead Commissioner of the CER setting out the request. As appropriate, the Minister may delegate to the President of the Agency the authority to act on the Minister’s behalf and, in collaboration with the CER, consider and respond to any request from the Panel to amend the Terms of Reference. The Minister or the President in case of such delegation, and the Lead Commissioner of the CER will use best efforts to ensure a response is provided to the Panel's letter within 30 calendar days. The Panel will continue with the impact assessment to the extent possible while waiting for the response in order to adhere to the time limits for the impact assessment. Any requests for amendments under this article, as well as any amendments to these Terms of Reference, will be posted on the Public Registry.

Appendix 1: Definitions of Terms

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