Annex to the Memorandum of Understanding
Between the
Impact Assessment Agency of Canada
and the
Canadian Nuclear Safety Commission

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

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 Description of the Project

1.1. [xxx] (the proponent) proposes to develop and operate the [name of Project] located [xx] kilometers (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 impact assessment 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 IAA), the Nuclear Safety and Control Act (NSCA) and these Terms of Reference.

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

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:

(i) the effects of malfunctions or accidents that may occur in connection with the designated project,

(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

(iii) the result of any interaction between those effects;

b) mitigation measures that are technically and economically feasible and that would mitigate any adverse effects of the designated project;

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;

d) the purpose of and need for the designated project;

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;

f) any alternatives to the designated project that are technically and economically feasible and are directly related to the designated project;

g) Indigenous knowledge provided with respect to the designated project;

h) the extent to which the designated project contributes to sustainability;

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;

j) any change to the designated project that may be caused by the environment;

k) the requirements of the follow-up program in respect of the designated project;

l) considerations related to Indigenous cultures raised with respect to the designated project;

m) community knowledge provided with respect to the designated project;

n) comments received from the public;

o) comments from a jurisdiction that are received in the course of consultations conducted under section 21 of the IAA;

p) any relevant assessment referred to in section 92, 93 or 95 of the IAA;

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;

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 IAA — that is in respect of a region related to the designated project and that has been provided with respect to the project;

s) the intersection of sex and gender with other identity factors

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

a) [Insert as necessary]

2.4. The assessment by the Panel, in accordance with section 24 of the NSCA and its regulations, will include consideration of:

a) Whether the applicant is qualified to perform the activity to be licensed; and

b) Whether in carrying on that activity the applicant will make adequate provisions for the protection of the environment, the health and safety of persons and the maintenance of national security and measures required to implement international obligations to which Canada has agreed.

2.5. As required, the scope of the factors set out in articles 2.2, 2.3 and 2.4 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 CNSC on [date].

Part 3 Mandate of the Integrated Review Panel

3.1. The Panel will conduct the assessment in accordance with the Terms of Reference in a manner that:

a) Discharges the requirements set out in the IAA;

b) Permits it to obtain the information and evidence required for it to consider a Licence Application under the NSCA; and,

c) Permits it to obtain information and evidence about the adverse effects the project may have on Aboriginal and/or Treaty rights as identified to the Panel and enables it to bring any such information and evidence to the attention of the Minister of the Environment in support of consultation between the Crown and Indigenous groups.

3.2. In accordance with subsection 51(1) of the IAA, the Panel must:

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 a manner that the review panel considers appropriate and within the time period specified by the review panel, 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 of the IAA, 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,

(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

3.3. A Panel established under subsection 44(1) of the IAA must in accordance with subsection 51(2) of the IAA include in its report the information necessary for the licence to be issued under section 24 of the NSCA in relation to the designated project.

3.4. The Panel has all the powers of a panel described in section 53 of the IAA.

3.5. As a panel of the Commission, the Panel also has the powers and duties of the Commission described in section 20 of the NSCA and the Rules of Procedure.

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

3.7. Nothing in this Terms of Reference is construed as limiting the ability of the Panel to discharge its mandate.

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

3.8.1. (Insert Terms of Reference)

3.8.2. 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 or near the communities of potentially affected Indigenous groups;
• As requested, providing interpretation services into Indigenous languages during the public hearing, if such services are available;
• Considering the timing of traditional activities by Indigenous groups in scheduling the public hearing; and
• As requested, translating the executive summary of its report into Indigenous languages, assuming such services are available.

3.8.3. Pursuant to its mandate as outlined in its Terms of Reference and the requirements of the IAA, 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 4 Supporting the Integrated Review Panel

4.1. The Agency and the CNSC will establish a Secretariat to support the Panel in its duties during the Impact Statement phase.

4.2. The Secretariat will be formed consisting of staff from the CNSC and the Agency and will provide administrative, technical and procedural support to the Panel.

4.3. The Secretary of the Commission, or his/her designate, will act as Secretary to the Panel and as co-manager of the Secretariat. The Agency Panel Manager will act as co-manager of the Secretariat.

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

4.5. The personnel who comprise the Secretariat will not be considered to be review participants.

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. At a minimum, the Panel is required to solicit input from review participants at the following steps in its process:

• request the views of participants on the information contained in the Impact Statement / Licence Application;
• request the views of participants on draft procedures for the conduct of the public hearing; and,
• prior to the start of the public hearing request the views of participants on draft potential conditions for consideration by GIC in the decision statement and by the Panel as the Commission in the proposed NSCA licence, should the project be allowed to proceed.

5.3. Insert appropriate principles as outlined in Public Participation Plan

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

6.1. The Agency will appoint the members of the Panel during the Impact Statement Phase. The Panel will provide advice to the Agency and the CNSC on whether the Impact Statement / Licence Application contains the required information and studies.

6.2. During the Impact Assessment Phase, the Panel will be responsible for the conduct of the integrated impact assessment, including the following:

• Undertake a public review of the Impact Statement / Licence 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 of the Environment as set out in articles xxx.

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 CNSC an Impact Statement / Licence Application. The Impact Statement / Licence Application must contain, to the satisfaction of the Agency and the CNSC, 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 3 years from the issuance of the Final Tailored Impact Statement Guidelines to prepare and submit its satisfactory Impact Statement / Licence Application to the Agency and the CNSC.

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

6.5. Following the receipt of the Impact Statement/Licence Application by the Agency and the CNSC, a copy will be posted on the Registry.

6.6. The Agency, in collaboration with the CNSC, will undertake a review of the Impact Statement / Licence Application to determine the following:

6.6.1. whether it is appropriate to start a public comment period. The Agency will engage with federal and provincial authorities or other participants, as appropriate and required, on whether there are information gaps that would prevent the Agency and other participants from starting an effective and efficient analysis of the documentation;

6.6.2. whether it contains the information and studies specified in the final Tailored Impact Statement Guidelines.

6.6.3. In order to assist with making the determination in 6.6.2, the Agency will initiate a xxx-day public comment period and any advice received will be posted on the Registry

6.7. The Agency will invite the Panel to review the Impact Statement / Licence Application and provide the Agency and the CNSC 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 CNSC. The advice provided by the Panel with be posted on the Registry.

6.8. Taking into consideration the advice received from the Panel, the federal and provincial authorities and Indigenous groups or others, the Agency and the CNSC will determine whether the Impact Statement / Licence Application contains the information and studies required by the Final Tailored Impact Statement Guidelines.

6.9. If the Agency and CNSC determine that the Impact Statement / Licence Application does not contain the required information and studies specified in the Final Tailored Impact Statement Guidelines, supplemental information to be provided by the proponent will be required. At the same time, the Agency’s notice to the proponent will be posted on the Registry.

6.10. Upon its submission to the Agency and the CNSC, the supplemental information provided by the proponent will be placed on the Registry.

6.10.1. If necessary, the Agency, in consultation with the CNSC, may request input from the federal and provincial authorities and Indigenous groups or others on the supplemental information.

6.10.2. The Agency will invite the Panel to review any information provided by the proponent and provide the Agency and the CNSC with its views as to whether the impact Statement / Licence Application, as supplemented by the information, contains the required information and studies. The Panel will provide its advice within the timeframe established by the Agency, in consultation with the CNSC. The advice provided by the Panel will be posted on the Registry.

6.10.3. Taking into consideration the advice received from the Panel, the federal and provincial authorities and Indigenous groups or others, the Agency and the CNSC will determine whether the Impact Statement / Licence Application, as supplemented, contains the information and studies required in the Final Tailored Impact Statement Guidelines.

6.11. The procedures described in articles xxx to xxx will apply, with the necessary adjustments, until such time as the Agency and the CNSC determine that the Impact Statement / Licence Application contains the information and studies required in the Final Tailored Impact Statement Guidelines. The advice received from the Panel, the federal and provincial authorities and Indigenous groups will be considered in making this determination.

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

6.13. Within 45 days of the posting of the notice referred to in xxx, the Minister must establish the Panel’s Terms of Reference, in consultation with the President of the CNSC.

6.14. The Panel’s assessment of the sufficiency of the Impact Statement / Licence Application pursuant to articles 6.13 to 6.20 is not affected or altered by the review of the these documents by the Agency and the CNSC or the Agency’s determination outlined in article 6.8.3.

Impact Assessment Phase

6.15. The Panel will undertake and complete its assessment within [300-600] calendar days. This time limit will only be suspended as described in the Information Requirements and Time Management Regulations.

The Panel will issue directions on procedures in accordance with the IAA, NSCA and the provisions of this Terms of Reference. The directions on procedures will include the Panel’s procedures for the conduct of the review of the Impact Statement / Licence Application, communication with the Panel, procedures for the conduct of the public hearing, and/or any other matter the Panel deems appropriate.

6.16. 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 review participants may submit within that period of time, written 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 Registry unless otherwise determined by the Panel.

6.16.1. The Panel will also seek the views of the Agency and the CNSC regarding whether the information provided is sufficient for the purpose of scheduling the public hearing. Any comments received from the Agency and the CNSC will be posted on the Registry unless otherwise determined by the Panel.

6.17. If the Panel determines that there is not sufficient information to proceed to a public hearing, it will require additional information as per subsections 52(1) and 52(2) of the IAA to be provided by the proponent or other participants. At the same time, the Panel will post the request on the Registry.

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

6.18.1. The Panel will also seek the views of the Agency and the CNSC on the information provided. Any comments received from the Agency and the CNSC will be posted on the Registry unless otherwise determined by the Panel.

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

6.20. Prior to the start of the public hearing, the Panel will release a list of proposed potential conditions that could be included in a decision statement issued under the IAA and a licence to be issued under the NSCA in the event that the Project is allowed to proceed. Participants will be given the opportunity to provide comments whether the proposed conditions are sufficient to address identified impacts or issues and concerns arising from the Project.

Public Hearing

6.21. 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 emphasize flexibility and informality, and be conducted in a manner that offers all interested participants an opportunity to participate in the hearing process. The draft procedures for the conduct of the public hearing will be based on and informed by the CNSC’s Rules of Procedure, with the understanding that these rules may be varied by the Panel, as appropriate. Participants will be given the opportunity to provide comments whether the draft procedures are sufficient to allow for open, flexible and informal public hearings.

6.22. 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 of the start of the public hearing.

6.23. 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.

6.24. The Panel will, to the extent possible, take into account the timing of traditional activities in local Aboriginal communities when setting the time and location of the public hearing session.

6.25. The Panel will use its best efforts to complete the public hearing and close the record of the review within xx days.

6.26. The public hearings will be conducted in accordance with the IAA, NSCA and this Terms of Reference and will ensure that opportunities are provided for timely and meaningful participation by the public and Indigenous groups and that technical sessions are scheduled for specific matters of concern.

6.27. For the purposes of the IAA and the NSCA, the public hearings will be public unless the Panel is satisfied after representations made by a participant that specific, direct and substantial harm would be caused to the participant or specific harm to the environment by the disclosure of the evidence, documents or other things that the participant is ordered to give or produce, or that information to be presented involves national or nuclear security; the information is confidential information of a financial, commercial, scientific, technical, personal or other nature that is treated consistently as confidential and the person affected has not consented to the disclosure; or the disclosure of the information is likely to endanger the life, liberty or security of a person.

Impact Assessment Report

6.28. Following the close of the record of the review, the Panel will prepare and submit to the federal Minister of the Environment a report with respect to the impact assessment as required in article xxx that sets out, but is not limited to the following:

• The adverse effects that, in the opinion of the Panel, are likely to be caused by the carrying out of the Project;
• An Indication of which of the effects are adverse effects within federal jurisdiction and which are adverse direct or incidental effects, and specifies the extent to which those effects are significant;
• How the Panel, in determining the effects that are likely to be caused by the carrying out of the Project, took into account and used any Indigenous knowledge provided;
• A summary of any comments received from the public;
• The rationale, conclusions and recommendations of the Panel, including any recommended mitigation measures and follow-up programs, under both the IAA and the NSCA; and
• All proposed potential conditions relating to the impact assessment Decision Statement for consideration by GIC and relating to the proposed licence and licence conditions for consideration by the Panel as the Commission.

6.29. The report will reflect the views of all members of the Panel. In particular, the report will reflect points of convergence and divergence, including deliberations on how the diverging views were addressed.

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

6.31. 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.

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

6.33. Upon receiving the report submitted by the Panel, the Minister of Environment and Climate Change will make the report available to the public and will advise the public that the report is available.

6.34. 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.

6.35. If there is a positive impact assessment decision, the Panel may proceed with making a decision with respect to the Licence Application pursuant to section 24 of NSCA.

Part 7 Expert Advice

7.1. The Panel may request specialist or expert information or knowledge with respect to the Project from federal, provincial and municipal authorities in possession of such information or knowledge, including the CNSC and Agency. Any such information received from federal, provincial and/or municipal authorities will be posted on the Registry.

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 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 6.1 and 6.2 to appear before the Panel at the public hearing.

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 President of the CNSC setting out the request. Upon receiving such a request, the President of the Agency is authorized to act on behalf of the federal Minister of the Environment and collaborate with the CNSC to provide to the Panel such clarification. The President of the Agency and the President of the CNSC 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 integrated 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 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 of the Environment and the President of the CNSC setting out the request. As appropriate, the Minister of the Environment may delegate to the President of the Agency the authority to act on the Minister’s behalf and, in collaboration with the CNSC, consider and respond to any request from the Panel to amend the Terms of Reference. The Minister or the President of the Agency in case of such delegation, and the President of the CNSC, 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 integrated impact assessment to the extent possible while waiting for the response in order to adhere to the time limits for the integrated impact assessment. Any requests for amendments under this article, as well as any amendments to these Terms of Reference, will be posted on the Registry.

Appendix 1: Definitions of Terms