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Environmental Assessment Review Panel Regulations

made under

Section 49 of the

Environment Act

S.N.S. 1994-95, c. 1

O.I.C. 2013-19 (January 22, 2013), N.S. Reg. 19/2013

Citation

1 These regulations may be cited as the Environmental Assessment Review Panel

Regulations .

Definitions

2 In these regulations,

“Act” means the Environment Act ;

“Administrator” means a person appointed by the Minister under the Act to carry out

the responsibilities set out in

Section 3, and includes an acting Administrator;

“Chair” means the person designated by the Minister to be the chair of a review

panel;

“confidential business information” includes a trade secret and know-how, but does

not include information about the environmental effects of or associated mitigation

measures for a proposed undertaking;

“ Environmental Assessment Regulations ” means the Environmental Assessment

Regulations made under the Act;

“formal presentation” means a written submission by an intervenor to a review

panel, and includes any oral

summary given by the intervenor at the hearing;

“hearing” means a public hearing or review conducted by a review panel under

subsection 44(1) of the Act;

“informal presentation” means an oral presentation by an intervenor to a review

panel;

“intervenor” means a person who has requested a time period to make a presentation

at a hearing in accordance with

Section 10;

“public record” includes all of the following:

(

i) any correspondence, document, submission, transcript or exhibit filed

with a review panel, excluding confidential business information,

(ii) a report prepared under the Environmental Assessment Regulations ,

(iii) a report prepared by a review panel under

Section 39 of the Act,

(iv) a decision made by the Minister under

Section 40 of the Act following

receipt of a report referred to in subclause (iii);

“trade secret” means a trade secret as defined in the Freedom of Information and

Protection of Privacy Act .

Administrator’s responsibilities

3 The Administrator is responsible for all of the following:

(

a) administering and directing the operations of a review panel;

(

b) organizing all activities of a review panel, including maintaining a file

containing all correspondence, documents and submissions respecting an

undertaking after an environmental-assessment report is referred to a review

panel;

(

c) except as prohibited by law, making copies available to anyone of material in

the file referred to in clause (b);

(

d) receiving and responding to inquiries concerning the hearing process;

(

e) supervising a hearing;

(

f) performing any functions that are assigned by the Minister or the Governor in

Council.

Review panel

(1) A review panel must have at least 3 members.

(2) A majority of a review panel constitutes a quorum.

(3) If a review panel member is temporarily absent or unable to attend a hearing, the

member or members remaining present may

(

a) exercise and perform all the jurisdiction, powers and duties of the review

panel; or

(

b) temporarily adjourn the hearing.

(4) The Minister may remunerate review panel members and reimburse them for

reasonable expenses.

Public consultation

(1) The Administrator must publish notice of a referral of an environmental-assessment

report to a review panel under clause 38(1)(

b) or (

c) of the Act in the manner

provided in

Section 29 of the Environmental Assessment Regulations and invite the

public to provide written comments to the Administrator within the 48 days

following the date the notice is published.

(2) The Minister may extend the period set out in subsection (1) for the public to

provide written comments and must provide the proponent with written notice of any

extension.

Hearing locations

(1) A review panel may hold sessions of a hearing in various locations in the Province

depending on the nature of the undertaking.

(2) At least 1 session of a hearing must be held in the village, town or city located

nearest to the site of the proposed undertaking, if in the opinion of the Chair it is

practical to do so.

(3) If sessions of a hearing are held in various locations, the Chair may, to prevent undue

repetition of evidence, decide that the official transcript of the oral evidence

presented in a session held at one location is considered part of the evidence in a

subsequent session held at a different location.

Notice of hearing

(1) The Administrator must sign a notice of hearing no later than 14 days after the date

an environmental-assessment report is referred to a review panel under clause

38(1)(

b) or (

c) of the Act.

(2) A notice of hearing must be in the form approved by the Administrator and must

include the time, place and purpose or subject of the hearing.

(3) A notice of hearing must be published twice in accordance with the following

deadlines:

(

a) unless directed otherwise by the Chair, the 1st publication of the notice of

hearing must occur no later than 21 days before the date the hearing is to begin;

(

b) the 2nd publication of the notice of hearing must occur no later than 14 days

before the date the hearing is to begin.

(4) The 1st and 2nd publication of a notice of hearing must each be published in the

manner provided in

Section 29 of the Environmental Assessment Regulations , except

that the publication need only appear once in the Royal Gazette.

(5) In addition to publishing it as required by subsection (4), the Administrator may post

a notice of hearing in a public building located near the site of the proposed

undertaking.

(6) The Administrator may serve a notice of hearing on any person, body or

organization by ordinary mail and may invite any person, body or organization to

make a presentation at the hearing.

(7) The Chair may accept an affidavit of the Administrator setting forth how and when

service was effected as evidence that a notice of hearing was served.

On-site visit or inspection

(1) A review panel may request that a proponent whose undertaking is under review

meet with the review panel 1 or more times before the hearing begins, to allow the

review panel to visit or inspect the site of the undertaking.

(2) The Administrator must record in writing any visit or inspection under subsection

(1), including the date and time of the visit or inspection and the identity of the

persons in attendance.

Pre-session conference

(1) The Administrator and the Chair may conduct a pre-session conference before a

hearing begins.

(2) A pre-session conference may include an explanation of the rules of procedure for

the hearing, identification of the participants and witnesses, definition of the issues,

estimation of the length of the hearing, and any additional matter that the Chair

considers appropriate.

(3) Notice of a pre-session conference must be in the form determined by the

Administrator and the Chair and, if practical, must be given no later than 3 days

before the date of the pre-session conference.

(4) The Administrator and the Chair may determine which participants are to be given

notice to attend a pre-session conference.

Intervenors

(1) Any person who has an interest in or is affected by the subject matter of a hearing

may be an intervenor at the hearing.

(2) A person who wishes to be an intervenor must contact the Administrator no later

than 14 days before the date the hearing is to begin to request a time period to appear

personally or by counsel at the hearing.

(3) An intervenor must, if possible, make a formal presentation.

(4) An intervenor must advise the Administrator whether the intervenor intends to make

a formal presentation or an informal presentation.

(5) An intervenor’s written submission must be delivered to the Administrator no later

than 10 days before the date the hearing is to begin.

(6) The Chair may direct that a copy of an intervenor’s written submission be delivered

to any additional person who has an interest in or is affected by the subject matter of

the hearing.

Submitting written material to review panel

(1) A person other than an intervenor who wishes to submit written material, including

journals, studies and reports, to a review panel must submit a copy of each item or

document to the Administrator no later than 7 days before the date the hearing is to

begin.

(2) Written material submitted under subsection (1) forms part of the public record.

(3) Unless directed otherwise by the Chair, a person who submits written material under

subsection (1) must, before the hearing begins, provide copies to the proponent and

to any additional persons specified by the Chair.

(4) Any oral presentation in relation to written material submitted under subsection

(1) must be limited to highlighting essential features of the material and responding to

questions on the material.

Summonses

(1) A summons to a witness or a summons for production of documents or things under

Section 44 of the Act must be signed by the Administrator.

(2) A summons to a witness may be in Form 1 of

Schedule A and a summons to

produce documents or things may be in Form 2 of

Schedule A.

General format of hearings

(1) At the discretion of the Chair, a hearing may be non-judicial, informal and

non-adversarial.

(2) A review panel is not required to follow the strict rules of law, procedure and

evidence required by a court.

(3) A review panel may determine the order of presentations at a hearing.

(4) Any person may be represented by legal counsel at a hearing.

(5) Subject to these regulations, before, during and after a hearing, a member of a review

panel must not communicate in private with anyone except another panel member, a

technical advisor, the Administrator, legal counsel to the panel and staff of a

government department about the substantive issues under consideration by the

panel.

(6) A review panel may retain a technical advisor to assist the panel in a hearing and the

Administrator must make any report of the technical advisor available to any person

on request.

(7) A review panel may, through the Administrator, permit consultations between a

technical advisor retained by the panel and participants in the hearing process.

Questioning in general

(1) Each question at a hearing must be directed to the Chair, who may invite the

appropriate person to respond to the question.

(2) The Chair may exclude any intervention or question that, in the opinion of the Chair,

is outside of the terms of reference of the review panel or is needlessly repetitive in

nature.

(3) The Chair may limit the questions asked and may limit persons in presenting

arguments and submissions.

(4) A question addressed to a group of persons representing the proponent or an

intervenor may be directed to a specific member of the group or, if available, the

group in general.

(5) If a question is directed to a specific member of a group representing the proponent

or an intervenor and that person is unable to answer because of a lack of knowledge

or qualification, the Chair may permit another member of the group to provide the

answer.

(6) If an intervenor or the proponent is unable to answer a question without further

consultation or research, the intervenor or proponent must provide an undertaking to

provide an answer on or before the close of the hearing or, if that is not possible, no

later than 7 days after the close of the hearing and the Administrator must provide

the response to the person who asked the question and to any other person on

request.

Oath or affirmation

(1) A person giving evidence at a hearing must give an oath or affirmation that the

evidence will be the truth, and evidence may be otherwise received only at the

discretion of the Chair.

(2) An oath or affirmation must be administered by the Administrator and, in the

absence of the Administrator, by the Chair.

Presentation by proponent

(1) At a hearing, the proponent must ensure that a person or group of persons who are

knowledgeable of the undertaking are in attendance and are able to answer questions

that are directed to the proponent.

(2) The Chair must grant a reasonable amount of time to the proponent to present their

case to the review panel and to address issues raised in the environmental assessment

report.

(3) Subject to the procedure for written questions prescribed in

Section 18, the Chair

must permit questioning of the proponent by the review panel, intervenors and other

persons.

Presentations by intervenors at hearing

(1) An intervenor who is making a formal presentation at a hearing must make their

presentation after the initial presentation by the proponent.

(2) An intervenor who is making an informal presentation at a hearing must follow those

persons who make formal presentations.

(3) An intervenor who intends to make a presentation at a hearing must provide their

name and address and details of any relevant affiliation to the review panel before

making the presentation.

(4) A number of intervenors sitting as a group may give a joint presentation if the review

panel is satisfied that in the particular case the tendering of evidence in this manner

will result in a full and fair hearing.

(5) Any presentation by an intervenor at a hearing must not exceed 20 minutes in length.

(6) An intervenor who requires more than 20 minutes for a presentation at a hearing

must make a request for extra time in writing to the Administrator to be forwarded to

the Chair for consideration.

(7) The Chair may extend the duration of a presentation at a hearing.

(8) To prevent undue repetition, the Chair may limit the duration of a presentation at a

hearing.

(9) Subject to the procedure for questioning prescribed in

Section 14, the Chair must

permit questioning of an intervenor by the review panel, proponent and other

persons.

Written questions

18 If written questions are submitted to the Administrator to be answered by the proponent

before a hearing begins, the proponent must make every reasonable attempt to provide

written answers before the hearing begins.

Final response by proponent

19 Before the close of a hearing, the proponent must be given the opportunity to make a final

presentation to the review panel in response to matters raised at the hearing.

Open forum

(1) After the completion of presentations and responses to questions by the proponent

and formal and informal presentations and responses to questions by intervenors at a

hearing, the Chair may permit presentations or questions from other persons in

attendance at the hearing.

(2) Presentations and questions by other persons in attendance referred to in subsection

(1), and responses to their questions, are part of the public record.

Transcript of hearing

(1) The Administrator must maintain a transcript of all oral evidence presented at a

hearing.

(2) The Administrator must make a copy of a transcript of a hearing available at the

head office of the Department and at the regional office of the Department that is

located nearest to the site of the proposed undertaking.

(3) Any corrections, errors or omissions in a transcript of a hearing must be reported to

the Administrator no later than 14 days after the date the copy of the transcript

becomes available.

(4) The Chair must make a final ruling on any dispute as to the contents of the transcript

of a hearing, after which it becomes part of the public record.

Written arguments or submissions

(1) No later than 14 days after the close of a hearing, or within another time period

determined by the Chair, a person who participated at the hearing may present

written arguments or written submissions through the Administrator to the review

panel.

(2) Copies of any written arguments or written submissions presented under subsection

(1) are part of the public record and the Administrator must make them available on

request.

Adjourning or extending hearing

(1) Subject to subsection (2), a review panel may

(

a) adjourn a hearing;

(

b) reopen a hearing; and

(

c) grant any extension of time for a hearing that the Chair considers proper.

(2) A hearing must not be reopened after the review panel has submitted its report and

recommendation to the Minister in accordance with

Section 26.

Legal counsel

24 A review panel may arrange for legal counsel to attend and assist during a hearing to

advise the review panel on any matter pertaining to the hearing and provide liaison with

the parties and their counsel.

Media coverage

conditions stipulated by the Chair, a Chair may permit radio and television

recordings of a hearing.

(2) A request for permission under subsection (1) must be made to the Administrator

before the beginning of the part of the hearing sought to be recorded.

(3) Work tables must be provided to members of the media at a hearing.

(4) Before a hearing begins, camera shots may be taken of the review panel, the persons

participating and the audience.

(5) After a hearing begins, photographic lights must be shut off and cameras left on

fixed mounts.

(6) Photographic and audio equipment must be placed before a hearing begins in

locations approved by the Chair and must not be moved while the hearing is in

progress.

(7) Media personnel must not move about while the hearing is in progress so as to

distract the review panel or the participants, or to disrupt the hearing.

(8) Only photographic and audio equipment that does not produce distracting sound or

light may be used in the room where a hearing is being held.

(9) Media interviews may be conducted only at breaks in the hearing or outside the

hearing room and only in a manner that will not interfere with the hearing.

(10) The Chair may disallow the videotaping or recording of all or a portion of a hearing

if, in the opinion of the Chair, the taping or recording would inhibit specific

witnesses or disrupt the hearing in any way.

Review panel report

(1) A review panel must submit its report and recommendation under

Section 39 of the

Act to the Minister no later than 110 days following the date an environmental-assessment report is referred to the review panel.

(2) The Minister may in writing extend the time period specified in subsection (1) and

the Administrator must advise the proponent of the extension and the reason for the

extension.

(3) A review panel must determine the style and format of its report to the Minister.

(4) A review panel report must be dated and bear the signature of the Chair and each

other member of the hearing panel.

(5) A review panel report must contain the names of all witnesses or other persons,

bodies or organizations who have contributed to the hearing and a bibliography of all

documents and written materials submitted during the hearing process.

(6) After the decision of the Minister under

Section 40 of the Act following receipt of a

review panel’s report and recommendation, copies of the report of the review panel

must be made available to the public on request and at a reasonable cost.

Public record

(1) The Department must keep a copy of each document that forms part of the public

record respecting a hearing on file at its head office.

(2) Copies of the public record, or parts of the public record, must be available to the

public and a fee may be charged to cover reasonable costs in connection with

production or copying.

(3) Notes made personally by any member of a review panel in a hearing or in related

preparation or deliberations are not part of the record of the matter for the purpose of

subsection (1).

Irregularity does not invalidate proceedings

28 No proceedings before a review panel are invalid by reason of any defect in form or any

technical irregularity.

Schedule A

Form 1: Summons

IN THE MATTER OF A HEARING before a review panel appointed under

Section 42 of the

Environment Act

SUMMONS

To:

Address:

You are required to attend before the review panel at _________________________, in the

County of _____________________, on ___________________ (month and day) , 20___, at

_____________ (time—specify a.m./p.m.) , and so on from day to day until the matter is heard,

to give evidence pertaining to:

(describe nature or subject of hearing as set out in Notice of Hearing)

Dated at _________________________, in the County of _____________________, Province

of Nova Scotia, on _____________ (month and day) , 20___.

Signed __________________________

Administrator

Environmental Assessment Review Panel

Form 2: Summons to Produce Documents

IN THE MATTER OF A HEARING before a review panel appointed under

Section 42 of the

Environment Act

SUMMONS TO PRODUCE DOCUMENTS

To:

Address:

Take notice that you are hereby required to produce and show to the review panel at a hearing

to be held at _________________________, in the County of _____________________,

Province of Nova Scotia, on ___________________ (month and day) , 20___, all books, letters

and other writings and documents in your custody, possession or power containing any entry,

memorandum or minute relating to the matter in question at this hearing, in particular the

following:

(list particular items)

Dated at _________________________, in the County of _____________________, Province

of Nova Scotia, on _____________ (month and day) , 20___.

Signed __________________________

Administrator

Environmental Assessment Review Panel