Chapter 10 - Environmental Assessment and Protection

ENVIRONMENTAL ASSESSMENT

1. At the request of any Party, the Parties will negotiate and attempt to reach agreements:
   
   
   1. to coordinate any Nisga’a, federal, and provincial environmental assessment requirements that will meet the Parties’ legal requirements concerning environmental assessments; and
      
      
   2. to avoid duplication of environmental assessment requirements.
      
      
2. Agreements under paragraph 1 may be between the Nisga’a Nation and one or both of the other Parties, and may cover the environmental assessment of one or more projects, including an assessment referred to in paragraph 4.
   
   
3. Nisga’a Lisims Government may make laws in respect of the environmental assessment of projects on Nisga’a Lands. In the event of a conflict between a Nisga’a law under this paragraph and a federal or provincial law of general application, the federal or provincial law will prevail to the extent of the conflict.
   
   
4. A project on Nisga’a Lands that requires an environmental assessment under Nisga’a law and the law of another Party will be assessed only under the process prescribed by Nisga’a law if the Nisga’a Nation and the other Party agree under paragraph 1 that the Nisga’a environmental assessment will provide the information that the other Party requires to make its decisions concerning the project. In the absence of an agreement, the Parties may carry out concurrent environmental assessments.
   
   
5. If a proposed project on Nisga’a Lands may reasonably be expected to have adverse environmental effects, the Nisga’a Nation will ensure that Canada and British Columbia:
   
   
   1. receive timely notice of, and relevant available information on, the project and the potential adverse environmental effects;
      
      
   2. are consulted regarding the environmental effects of the project if there may be adverse environmental effects off Nisga’a Lands, or on federal or provincial interests referred to in this Agreement; and
      
      
   3. receive an opportunity to participate in any environmental assessment under Nisga’a laws related to those effects, in accordance with those laws, if there may be significant adverse environmental effects off Nisga’a Lands, or on federal or provincial interests referred to in this Agreement.
      
      
6. If a proposed project that will be located off Nisga’a Lands may reasonably be expected to have adverse environmental effects on residents of Nisga’a Lands, Nisga’a Lands or Nisga’a interests set out in this Agreement, Canada or British Columbia, or both, as the case may be, will ensure that the Nisga’a Nation:
   
   
   1. receives timely notice of, and relevant available information on, the project and the potential adverse environmental effects;
      
      
   2. is consulted regarding the environmental effects of the project; and
      
      
   3. receives an opportunity to participate in any environmental assessment under federal or provincial laws related to those effects, in accordance with those laws, if there may be significant adverse environmental effects.
      
      
7. If Canada or British Columbia establishes a board, panel, or tribunal to provide advice or make recommendations with respect to the environmental effects of a project on Nisga’a Lands or a project off Nisga’a Lands that may reasonably be expected to have adverse environmental effects on residents of Nisga’a Lands, Nisga’a Lands, or Nisga’a interests set out in this Agreement, the Nisga’a Nation will:
   
   
   1. have standing before the board, panel, or tribunal; and
      
      
   2. be entitled to nominate a member of the assessment board, panel, or tribunal, unless the board, panel, or tribunal is a decision-making body, such as the National Energy Board.
      
      
8. All environmental assessment processes referred to in this Agreement will, in addition to the requirements of applicable environmental assessment legislation:
   
   
   1. coordinate to the extent possible the environmental assessment requirements placed by the Parties upon a project proponent;
      
      
   2. require the project proponent to provide information or studies, as appropriate, about the project and its potential environmental effects and the measures that can be taken to prevent or mitigate those effects;
      
      
   3. ensure that all information relevant to the assessment of the project is available to the public, other than information that is required to be kept confidential under applicable law;
      
      
   4. provide for public participation in the assessment process, including public notice of the project, an opportunity to make submissions, and, when deemed appropriate by the Party conducting the assessment, public hearings conducted by an independent review panel;
      
      
   5. assess whether the project can reasonably be expected to have adverse environmental effects on residents of Nisga’a Lands, Nisga’a Lands, or Nisga’a interests set out in this Agreement and, where appropriate, make recommendations to prevent or mitigate those effects;
      
      
   6. assess the effects of the project on the existing and future economic, social and cultural well-being of Nisga’a citizens who may be affected by the project;
      
      
   7. set out time periods within which the assessor must make its recommendation in respect of whether or not the project should proceed;
      
      
   8. provide for recommendations, based on the assessment, to the Party or Parties with decision-making authority over the project, in respect of whether the project should proceed;
      
      
   9. take into account any agreements between the project proponent and the Nisga’a Nation or a Nisga’a Village concerning the effects of the project; and
      
      
   10. be conducted and completed by a Party before that Party issues final approval.
       
       
9. Decisions by any Party regarding the issuance of a permit or approval for a project will take into account the recommendations of the environmental assessment.
   
   
10. In exercising decision-making authority for projects that may have adverse environmental effects on residents of Nisga’a Lands, Nisga’a Lands, or Nisga’a interests set out in this Agreement, the decision maker will take into account, but will not be bound by, any agreements between the Nisga’a Nation or a Nisga’a Village and the project proponent concerning the project.

ENVIRONMENTAL PROTECTION

11. Except as otherwise set out in this Agreement, Nisga’a Lisims Government may make laws in respect of environmental protection on Nisga’a Lands, including discharges into streams within Nisga’a Lands. In the event of a conflict between a Nisga’a law under this paragraph and a federal or provincial law, the federal or provincial law will prevail to the extent of the conflict.
    
    
12. Any Party may respond to an environmental emergency or natural disaster if the Party with primary responsibility for responding has not responded, or is unable to respond, in a timely manner.
    
    
13. If there is an environmental emergency or natural disaster, the Party responding will, if possible, notify the Party with primary responsibility in advance of taking action, but, in any case, will notify that Party as soon as practicable after responding.
    
    
14. Canada and the Nisga’a Nation may enter into agreements concerning the performance of specified federal environmental protection functions by Nisga’a Institutions.
    
    
15. British Columbia and the Nisga’a Nation will negotiate and attempt to reach agreements concerning the performance of specified provincial environmental protection functions by Nisga’a Institutions within an area to be defined in those agreements.
    
    
16. Any agreements entered into under paragraph 15 will be in accordance with the technical and administrative capacity and resources of Nisga’a Institutions to carry out the functions in accordance with relevant provincial standards.
    
    
17. Each Party will enforce its environmental laws in the Nass Area in a fair, impartial and effective manner, through appropriate governmental action, consistent with the exercise of prosecutorial discretion.
    
    
18. No Party should relax its environmental standards in the Nass Area for the purpose of providing an encouragement to the establishment, acquisition, expansion, or retention of an investment.
    
    
19. This Agreement does not preclude a Party, within the scope of its jurisdiction, from establishing environmental standards that take into account the specific environmental conditions of a region, location, or type of project