Step 5: Follow-up, Monitoring, and Compliance & Enforcement

Under the Impact Assessment Act, there would be increased opportunities for Indigenous and community participation in follow-up and monitoring. In order to strengthen the compliance regime for impact assessments, new provisions would be proposed to verify compliance, issue orders and correct non-compliance.

Objectives:

  • Increase confidence that conditions in the Minister’s Decision Statement are being complied with
  • Increase opportunity for meaningful participation in monitoring activities

Key Actions during this Phase:

Proponent:

  • Comply with Minister’s Decision Statement
  • Implement mitigation measures and follow-up program

Agency:

  • Verify compliance with Minister’s Decision Statement
  • Use enforcement tools to prevent non-compliance
  • Establish Monitoring Committees

Indigenous Peoples and other communities:

  • Participate in Monitoring Committees
  • Inform the Agency of potential non-compliance

Overview

Follow-up and Monitoring Advisory Committees

At the end of the Impact Assessment phase, the Minister of Environment and Climate Change issues a Decision Statement setting out the public interest decision and outlining any enforceable conditions that the proponent must comply with.

Where there is a federal life-cycle regulator for a project, conditions established by decision statements would continue to be set out in certificates, licences or permits of the life-cycle regulator 67. The life-cycle regulator would continue to be responsible for monitoring project compliance with conditions throughout the project life-cycle.

Indigenous peoples and other communities could have an expanded role in monitoring impacts. Where circumstances warrant, the Agency would establish Environmental Monitoring Committees that would help provide additional confidence in the science and evidence used in follow-up and monitoring programs.

Information collected and the results of monitoring and follow-up programs would be made publicly available.

Section 67

(1) The Minister may, in a decision statement issued in relation to a designated project that includes activities that are regulated under the Nuclear Safety and Control Act, designate any condition that is included in the decision statement, and any condition designated by the Minister is considered to be a part of the licence issued under section 24 of that Act in relation to the designated project.

(2) A decision statement issued in relation to a designated project that includes activities that are regulated under the Canadian Energy Regulator Act is considered to be a part of the certificate, order, permit, licence or authorization issued, the leave or exemption granted or the direction or approval given under that Act in relation to the designated project.

(3) A decision statement issued in relation to a designated project that includes activities that are regulated under the Canada Oil and Gas Operations Act is considered to be a part of the authorization or licence issued, the approval granted or the leave given under that Act in relation to the designated project.

(4) Sections 120 to 152 do not apply to the administration or enforcement of this Act as it relates to any condition that is considered to be a part of a licence and any decision statement that is considered to be a part of a licence, certificate, order, permit, authorization, leave, exemption, direction or approval.

Compliance and Enforcement

Strong provisions in the legislation would ensure that proponents comply with the proposed Impact Assessment Act. Under the current Act, the Canadian Environmental Assessment Act, 2012, the Minister of Environment and Climate Change has the power to designate persons or a class of persons as enforcement officers. Enforcement officers are responsible for verifying compliance and issuing orders to correct non-compliance. Under the proposed Impact Assessment Act, enforcement officers as well as analysts would be designated 120 under the Act.

Analysts would be persons with specific scientific or other expertise that is needed to support enforcement officers in carrying out their duties.

Section 120

(1) The Minister may designate persons or classes of persons as enforcement officers or analysts for the purposes of the administration and enforcement of this Act.

A process would be established to review issued orders of non-compliance. When an order of non-compliance has been issued, the person who was given the order may request in writing to the Agency that the order be reviewed 130. The request for review of the order must take place within 30 days after the order was given. Orders remain in effect while the review is completed.

Section 130

(1) Any person or entity to whom an order is given under section 127 or 128 may, by notice in writing given to the President of the Agency within 30 days after the day on which the person or entity receives a copy of the order, make a request to the President for a review of the order.

New provisions would require the Agency to publish more information 152 related to compliance and enforcement, such as summaries of inspection reports and enforcement actions, to the Agency’s website.

Section 152

The Agency must publish, in the manner it considers appropriate,

(a) information or a document provided by a proponent to comply with a condition established under section 64 or added or amended under section 68;

(b) a summary of a report that an enforcement officer or analyst may prepare in the exercise of their powers or the performance of their duties and functions under sections 122 to 125;

(c) a notice of non-compliance referred to in section 126;

(d) a written order issued by an enforcement officer in accordance with section 127 or by a review officer under section 134; or

(e) a decision rendered under section 135.

A new penalty scheme is proposed under the Impact Assessment Act. Fines would be increased 144 to align with amounts in other environmental legislation (e.g., the Canadian Environmental Protection Act, 1999). This penalty scheme would also allow for different fines 144 to be prescribed for individuals versus corporations.

Section 144

Penalty - individuals

(2) Every individual who commits an offence under sub-section (1) is liable on summary conviction

(a) for a first offence, to a fine of not less than $5,000 and not more than $300,000; and

(b) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000.

Penalty – small revenue corporations or entities

(3) Every corporation or entity that commits and offence under subsection (1) and that the court determines under section 145 to be a small revenue corporation or entity is liable on summary conviction

(a) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000; and

(b) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.

Penalty – other corporations or entities

(4) Every corporation or entity, other than a corporation or entity referred to in subsection (3), that commits an offence under subsection (1) is liable on summary of conviction

(a) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000; and

(b) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000.

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