Environmental Review Policy

1. Policy

It is Council's policy that all appropriate protective measures be taken to protect the lands of Malahat Nation

2. Purpose

The purpose of this policy is to ensure that projects that require the exercise of a power or performance of a duty or function by Malahat Nation Council are considered in a careful and precautionary manner to avoid significant adverse environmental effects on Malahat lands and resources.

Until Malahat Nation enacts its own Environmental Assessment Law pursuant to the Malahat Nation Land Code, this policy must be consulted each time Council takes action or makes a decision within the scope of the Malahat Nation Land Code that may have an effect on the environment.

3. Scope

This Policy applies to any and all projects and designated projects that have the potential to adversely affect Malahat Nation land.

4. Definitions

Applicant: A person or entity, including Malahat Nation departments, that proposes to carry out projects on IR 11.

Designated Projects: Physical activities that are listed in the Impact Assessment Act Physical Activities Regulations. These are generally larger scale projects known to be likely to result in adverse environmental effects.

Effects: unless the context requires otherwise, changes to the environment or to health, social or economic conditions and the positive and negative consequences of these changes;

Environment: The components of the Earth including:

a. land, water and air, including all layers of the atmosphere;

b. all organic and inorganic matter and living organisms; and

c. the interacting natural systems that include components referred to in paragraphs a and b;

Environmental Review: a review of a project or designated project to determine its potential environmental effects;

Exemption List: the list, set out in Appendix A of this Policy, of those projects that are not likely to cause significant adverse environmental effects and therefore exempted from environmental screening requirements;

Project: A physical activity that is carried out on Malahat Nation IR 11 lands in relation to a physical work and is not a designated project.

Qualified Environmental Professional: an individual who carries out a part of an assessment under this policy and is:

a. acting within the individual’s area of expertise, and in accordance with the code of ethics for the applicable regulatory body for that individual’s profession; and

b. a member in good standing of the applicable regulatory body for any of the following professionals:

  1. an agrologist;
  2. an applied science technologist or certified technician;
  3. a registered professional biologist or registered biology technologist;
  4. a professional engineer or professional engineering licensee;
  5. a professional forester or registered forest technologist; or
  6. a professional geoscientist or professional geoscience licensee.

5. Regulatory Context

a. The provisions in Annex F of Malahat Nation’s Individual Agreement with Canada set out the environmental assessment process that will apply to Malahat Nation Land until the enactment and coming into force of First Nation Laws on the subject.

b. Pursuant to the Individual Agreement, Malahat will conduct an assessment process in respect of every project on First Nation Land that is consistent with federal environmental and impact assessment legislation. This means that Malahat Nation will not carry out the project on First Nation land, or exercise any power or perform any duty or function conferred on it under the Malahat Nation Land Code or a First Nation law that would permit the project to be carried out, in whole or in part, on First nation Land, unless the Council of the First Nation determines that the carrying out of the project:

  1. is not likely to cause significant adverse environmental effects; or
  2. is likely to cause significant environmental effects, but those effects are justifiable in the circumstances.

c. In this policy, environmental effects include:

  1. a change to the environment that would occur on Malahat IR 11;
  2. with respect to the Indigenous peoples, an effect – occurring on Malahat IR 11 and resulting from any change to the environment – on

i. physical and cultural heritage;

ii. the current use of lands and resources for traditional purposes; or

iii. any structure, site or thing that is of historical, archaeological, paleontological or architectural significance; and

  1. a change occurring to the health, social, or economic conditions of indigenous peoples.

6. Roles and Responsibilities

6.1 Chief and Council

(a) Chief and Council must decide whether a project or designated project, taking into account the implementation of any mitigation measures they consider appropriate:

  1. is not likely to cause significant adverse environmental effects;
  2. is likely to cause significant adverse environmental effects; or
  3. is likely to cause significant adverse environmental effects, and those effects are justified in the circumstances.

(b) Chief and Council must make the decision under paragraph 7 prior to exercising any duty or power under the Malahat Nation Land Code that would allow the project or designated project to proceed.

6.2 Lands Department

The Lands Manager must:

a. determine whether a proposed activity is a project (or a designated project) requiring an environmental review in accordance with this policy;

b. provide an Applicant written notice that an environmental review is required;

c. identify any additional information required to complete the environmental review;

d. make recommendations to Council to aid the determination of the likelihood and significance of environmental effects, and whether any environmental effects of the project can be adequately mitigated.

6.3 Applicant

The Applicant must:

a. provide the information requested pursuant to an environmental review to the Lands Department well in advance of the proposed project start date to allow sufficient time for review

b. pay any costs associated with an environmental review or assessment, including the retention of qualified environmental professional and where required by the Lands Department, the reasonable costs of an independent review of a screening report under this section;

c. follow all recommendations, conditions, and/or criteria provided by Council in the Land Use Application Review with respect to the proposed project.

Where an Environmental Review is deemed necessary under this policy, the Applicant must not proceed with any aspect of the project on Malahat Nation lands that would have an effect on the environment, unless:

a. an environmental review has been completed;

b. Council has passed a Band Council Resolution stating that:

  1. the project is unlikely to cause any significant adverse environmental effects, or

  2. the project is likely to cause significant adverse environmental effects, but those effects are justifiable in the circumstances; and

c. the applicant agrees to comply with any conditions set by Council that relate to mitigating measures.

7. Procedures

7.1 Delegation of Responsibility

(a) No responsibilities outlined in this document may be delegated.

7.2 Environmental Review process

  1. The Applicant submits a Land Use Application form to the Malahat Nation Lands Department. Lands Department Review

  2. Malahat Nation Lands Department makes a determination as to whether the proposed use is either a project or a designated project.

  3. If it is a designated project, the Malahat Nation Lands Department will work with the Impact Assessment Agency of Canada to determine an appropriate environmental assessment process consistent with federal legislation.

  4. If it is a project, Malahat Nation Lands Department will determine whether the project is included in the Exemption List.

  5. If the project does not fall under the Exemption List an environmental screening report is required.

  6. If an environmental screening is required, an environmental screening report must be prepared by a qualified environmental professional at the Applicant’s expense and submitted to the Lands Department for review.

  7. Information requirements for an environmental screening report are listed in Appendix B.

  8. Where an environmental screening report is submitted, it may be reviewed by an independent qualified environmental professional at the discretion of the Lands Department and at the Applicant’s reasonable cost.

  9. The Lands Department will provide Council with copies of the environmental screening report and make recommendations as to the likelihood and significance of adverse environmental effects.

  10. Council will review the available information, including the environmental effects of the proposed project, and make a determination under paragraph 5.

  11. Where Council determines that a proposed project may proceed, prior to exercising any duty or authority under the Malahat Nation Land Code, Council will identify any required follow up or mitigation measures in writing.

8. References and Related Authorities

• Malahat Nation Land Code

• Sections 23, 25, 26 and 27 of the Framework Agreement;

• Section 8.1 and Annex “F” of the Malahat Nation Individual Agreement;

• Impact Assessment Act Canadian Environmental Assessment Act S.C. 2019, c. 28, s. 1 and its Regulations; and

• Paragraphs 6(3)(c), 20(1)(b) and 20(2)(c), and Sections 21 and 40 of the First Nations Land Management Act

APPENDIX A

PROJECT EXEMPTION LIST TO ENVIRONMENTAL REVIEW REQUIREMENTS:

  1. The Malahat Nation Council is of the opinion that the carrying out of a project that meets the following criteria will not cause significant adverse environmental effects:

  2. Administrative actions that will not, or do not affect Malahat lands or resources (i.e., transfer or extension of a lease, permit or other interest that will not result in any physical changes to a previously approved project or activity occurring on the land);

  3. Emergency repairs or actions needed on an urgent basis to avoid or respond to emergencies;

  4. Responses to accidents or threats to public health;

  5. Projects that fall under "SCHEDULE 1" of the Designated Classes of Projects Order of the Impact Assessment Act, SC 2019, c 28, s 1 and as set out below.

  6. The exemption list below does not include projects:

    a. that cause a change to >>i. any characteristic of a water body, >>ii. migratory birds or nests, as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, >>iii. wildlife species, as defined in subsection 2(1) of the Species at Risk Act that are listed in Schedule 1 of that Act, or >>iv. residences or critical habitats, as defined in subsection 2(1) of the Species at Risk Act, of wildlife species referred to in subparagraph (iii);

b. that involve an activity referred to in subsection 5(1) of the Canadian Navigable Waters Act, subsection 35(1) or 36(3) of the Fisheries Act, or subsection 3(1) of the Wildlife Area Regulations c. that involve the removal of any structure or resource that is of historical, archaeological, paleontological or architectural significance; or d. that cause damage to any structure, resource or site that is of historical, archaeological, paleontological or architectural significance.

SCHEDULE 1:

PART 1: General

  1. The operation, maintenance or repair of a physical work.

  2. Physical activities that are carried out entirely within the interior of a building.

  3. (1) The construction or operation of a well to conduct geotechnical or environmental investigations of the subsurface characteristics of a site for the purpose of scientific research or of assessing or monitoring the site for contamination.

(2) The decommissioning of a well that was used to conduct a geotechnical or environmental investigation referred to in subsection (1).

(3) The classes of projects described in subsections (1) and (2) do not include projects that involve the placement of temporary or permanent fill in a water body.

PART 2: Buildings

4 (1) On developed land, the construction, installation, operation, modification, demolition, decomissioning, removal or replacement of a building that has a footprint of no more than 1 000 m2.

(2) On developed land, the expansion of a building that does not increase the building's footprint to more than 1 000 m2.

(3) On land other than developed land, the construction or installation of a building that has a footprint of no more than 100 m2.

(4) The classes of projects described in subsections (1) to (3) do not include projects that

(a) involve the placement of temporary or permanent fill in a water body;

(b) involve the disturbance of known or suspected subsurface contamination; or

(c) involve the demolition of a building that is less than 30 m from a school, hospital or residential building.

PART 3: Physical Works Related to Building or Other Structure

5 (1) On developed lands, the construction, installation, operation, modification, expansion, replacement, removal or decommissioning of any of the following physical works that are related to a building or other structure and that have a footprint, when combined with the footprint of all other physical works related to the building or structure, of no more than 1 000 m2:

(a) lighting systems;

(b) signage;

(c) fire suppression infrastructure;

(d) parking lots;

(e) paved areas;

(f) charging stations for electrical vehicles;

(g) infrastructure that generates solar or wind power;

(h) fencing that does not prevent the passage of wild animals; and

(i) sidewalks, boardwalks, paths, pedestrian ramps or access roads.

(2) The classes of projects described in subsection (1) do not include projects that

(a) involve the placement of temporary or permanent fill in a water body; or

(b) involve the disturbance of known or suspected subsurface contamination.

6 (1) On lands other than developed lands, the construction, installation, operation, modification, expansion, replacement, removal or decommissioning of any of the following physical works that are related to a building or other structure and that have a footprint, when combined with the footprint of all other physical works related to the building or structure, of no more than 100 m2:

(a) lighting systems;

(b) signage;

(c) fire suppression infrastructure;

(d) parking lots;

(e) paved areas;

(f) charging stations for electrical vehicles;

(g) infrastructure that generates solar or wind power;

(h) fencing that does not prevent the passage of wild animals; and

(i) sidewalks, boardwalks, paths, pedestrian ramps or access roads.

(2) The classes of projects described in subsection (1) do not include projects that

(a) involve the placement of temporary or permanent fill in a water body; or

(b) involve the disturbance of known or suspected subsurface contamination.

PART 4: Utility Infrastructure

7 (1) The installation, operation, replacement, modification, decommissioning, abandonment or removal of a hydrant or hook-up that is part of a utility distribution system for a municipality or farm.

(2) The construction, installation, operation, replacement, modification, expansion, removal or decommissioning of water-related utility infrastructure, other than water pipelines, that has a footprint of no more than 100 m2.

(3) The construction, installation, operation, replacement, modification, expansion, removal or decommissioning of water pipelines that are

(a) no more than 100 m in length; or

(b) located underneath, or on developed land that is alongside and contiguous to, a railway or road.

(4) The modification of a water treatment facility.

(5) The construction, installation, operation, replacement, modification, expansion or abandonment of a portion of any of the following physical works that is located more than 30 m from a water body and are underneath, or on developed land that is alongside and contiguous to, a railway or road:

(a) sewers;

(b) drains;

(c) steam lines;

(d) service tunnels; and

(e) overhead or underground telecommunication lines.

(6) The classes of projects described in subsections (1) to (5) do not include projects that

(a) involve the placement of temporary or permanent fill in a water body;

(b) involve the crossing of a water body, other than an overhead crossing by a telecommunication line; or

(c) involve the disturbance of known or suspected subsurface contamination.

PART 5: Above Ground Storage Tank Systems

8 (1) The installation, replacement, operation, modification, expansion or removal of an above ground storage tank system for petroleum products or allied petroleum products that is

(a) located within an airport and has an aggregate capacity of no more than 30 000 L; or

(b) located outside of an airport and has an aggregate capacity of no more than 5 000 L.

(2) The classes of projects described in subsection (1) do not include projects that involve the disturbance of known or suspected subsurface contamination.

APPENDIX B

Malahat Nation Land Code – Form No. 7

ENVIRONMENTAL REVIEW REPORT INFORMATION REQUIREMENTS

1. PROJECT INFORMATION
Project title and proponent contact details
Proposed start and expected completion date of the project and describe all components of the project over the entire life cycle of the project, including site preparation, construction, operation, decommissioning, and site restoration or rehabilitation.
Any physical works or activities accessory to the principle project (for example, if the project creates waste, include information on the proper disposal of that waste; or if certain utilities need to be established or decommissioned for the project, include those ancillary works).
Identify all permits, licences or approvals (including any provincial or municipal requirements when applicable) that need to be obtained for the project and any other important characteristics of the regulatory environment:
Attach maps of the area, showing the project location in relation to existing activities, topographic features, watercourses and water bodies
Attach copies of drawings, plans, maps showing the project location and any key features referred to in the remainder of the document.
2. LAND DESCRIPTION
All surface water bodies (lakes, rivers, streams, wetlands, bogs, etc.) in or within 30 m of the study area.
Identify all drinking water wells or aquifer recharge zones (i.e., a land area into which water can infiltrate into and replenish an aquifer relatively easily) and the depth to groundwater, if known.
Soil type and topography, slope and any special landforms within the specified project area
Describe the land use (e.g., zoning, current and past land uses and ownership) at the project site and any existing and planned resource use within the boundaries or surrounding areas of the site that may be affected by the proposed project (e.g., farming, forestry, mining, commercial fisheries, wildlife populations and/or distribution, trapping/hunting, location of traditional plants, water resources)
3. FLORA AND FAUNA
Identify any plant and animal species that are listed under the federal Species At Risk Act that have the potential to be present in the project area (the Species At Risk registry managed by Environment Canada provides information on listed species at risk and their habitat.).
Identify any migratory birds – as populations and as individuals – and their habitats, eggs and nests that have the potential to be present in the project area.
If the project involves in-water works or is sited near water, identify any fish species that have the potential to be present in the project area and identify the type and location of fish habitat.
Describe the vegetation in the area (such as forests, marshes, grass fields, cultivated fields) as well as in the adjacent areas.
Describe animals in the area (aquatic species, amphibians, reptiles, birds, mammals) as well as in the adjacent areas.
Identify any significant sensitive natural areas (e.g., wetlands, overwintering or calving areas, spawning grounds, etc.) in the project area.
4. Traditional/Cultural Uses
Identify any traditional, historical, archeological and/or cultural use areas in the project area.
5. Environmental Effects
Indicate any potential effects from the project to:
Surface and groundwater quality, flow, or movement; any resulting sedimentation or erosion; and any pollution from operations or accidental spills.
The land surface (e.g., clearing of trees, shrubs, or ground vegetation), any unique and sensitive features (e.g., wetland or park), or adjacent properties
Any plant or animal species, including those listed under the federal Species At Risk Act that have the potential to be affected in the project area
Any migratory birds – as populations and individuals – or their habitats, eggs and nests
Any fish or fish habitat
Air quality (from chemical emissions or dust/odours) and on noise-sensitive receptors (e.g., schools, daycares, nursing homes, residences, places of worship, hospitals, etc.)
Any potential concerns that the project may raise in the community or general public (e.g., effects on local businesses, institutions/public facilities, physical or cultural heritage resources, or the current use of lands and resources for Malahat traditional purposes).
Identify if the project has the potential to result in the creation of waste material requiring disposal (such as oil products for machinery, treated wood, lead paint, etc.), involves the installation of a fuel tank over 230 L, or requires the use of soil or material (e.g. sand, gravel, or rocks).
If the fish, fish habitat, aquatic species listed under the Species At Risk Act or migratory birds are likely to be present in the project area, include a plain language professional opinion (maximum 3,000 words) regarding the potential changes and the likelihood that those changes will occur as a result of the project to:
   a. fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,
   b. aquatic species as defined in subsection 2(1) of the Species at Risk Act,
   c. migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994
6. Mitigation Measures
If any potential effects are identified, list applicable mitigation measures proposed to be implemented during the life of the project to minimize or avoid those effects:
   a. Contact Environment Canada for guidance on appropriate mitigation measures for impacts to migratory birds, such as timing restrictions
   b. Contact the Department of Fisheries and Oceans for advice on appropriate mitigation measures and/or Fisheries Act authorizations. Authorizations may also be required if the project involves blasting in or near water, killing fish by means other than fishing, or creating a barrier to fish migration. Environment Canada is responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act which prohibit the deposit of deleterious (harmful) substances to water containing fish.
7. Comments and Other Information
Provide any other information you feel is pertinent for the Lands Department to know about the project.
Identify any key best practices or mitigation measures not otherwise listed above that you plan to implement during the project.
Provide a list of any supporting documentation (copies of permits, reports, etc) that may substantiate your information and be useful for the Malahat Nation Lands Department during their review.
The applicant and the qualified environmental professional preparing the report must provide signatures and commit to the implementing the mitigation measures stated. Malahat Nation will make its determination of environmental effects based on these measures. Further information may be sought from the applicant by Malahat Nation if needed to support the determination of environmental effects.

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