Draft Co-operation Agreement between Manitoba and Canada on Environmental and Impact Assessment

WHEREAS Canada respects Manitoba’s jurisdiction over the development, conservation and management of non-renewable natural resources in the province, and its decisions related to the management of those resources in the province;

WHEREAS Canada and Manitoba recognize that each jurisdiction has responsibilities for the environment and Constitutional obligations to consult with, and where appropriate, accommodate Indigenous Peoples when the Crown contemplates actions that could adversely impact their rights recognized and affirmed under section 35 of the Constitution Act, 1982;

WHEREAS Canada and Manitoba have each established robust processes for the high-quality assessment of the effects of certain types of projects, informed by rigorous science, Indigenous Knowledge and community knowledge, and that lead to sound decisions;

WHEREAS Canada’s decisions under its assessment framework are limited to effects within federal jurisdiction that may be caused by certain types of projects, as prescribed in the Physical Activities Regulations or designated under section 9 of the Impact Assessment Act;

WHEREAS Canada and Manitoba are committed to ensuring that processes are informed by, and aligned with the principles of the United Nations Declaration on the Rights of Indigenous Peoples;

WHEREAS Canada and Manitoba are committed to respecting Aboriginal and treaty rights, engaging in early, consistent, and meaningful consultation with Indigenous Peoples, in a manner that promotes reconciliation and respects the rights and cultures of Indigenous Peoples;

WHEREAS Canada and Manitoba are committed to increasing regulatory certainty in order to attract capital and promote our economic resilience while ensuring environmental protections and Indigenous rights are upheld;

WHEREAS Canada and Manitoba recognize the importance to these goals, of implementing their processes in a manner that is transparent, coordinated, efficient and timely, enables each of them to exercise their respective powers and duties under the Impact Assessment Act (IAA), The Environment Act, and section 35 of the Constitution Act, 1982, and contributes to a positive investment climate in Canada;

WHEREAS Canada and Manitoba agree to work toward efficiently and effectively implementing “one project, one review” with the goal of a single process for projects that require both a federal and provincial assessment in accordance with their respective authorities, in a manner that respects federal and provincial jurisdiction, enhancing co-ordination of activities on permitting and eliminating duplication; and

THEREFORE, Canada and Manitoba agree to cooperate in the conduct of their processes in accordance with the provisions in this Agreement.

1. Reliance on Manitoba’s Processes and Reciprocity

(1) When a proposed project is not or does not include a federal work or undertaking as defined under the Canadian Environmental Protection Act, 1999, Canada is committed to relying on Manitoba’s applicable processes, including environmental assessment and regulatory processes for the assessment of the adverse effects within federal jurisdiction of a proposed project, to the greatest extent possible.

(2) Conversely, when a proposed project is or includes a federal work or undertaking as defined under the Canadian Environmental Protection Act, 1999, or is on federal lands, such as, but not limited to, a port or a nuclear project, Canada is committed, to the greatest extent possible, to integrating Manitoba’s environmental assessment and regulatory process requirements into the federal assessment, if applicable and desired by Manitoba.

2. Early Notification and Information Sharing

(1) Impact Assessment Agency of Canada (IAAC) and the Minister charged with the administration of The Environment Act, as represented by Manitoba Environment and Climate Change (MECC), will implement the following commitments regarding early notification and information sharing, to ensure adequate/robust information is available to inform Canada’s approach to relying on Manitoba’s processes, including assessment and regulatory and Manitoba’s approach to relying on the federal assessment process if applicable and desired by Manitoba.

(2) IAAC and MECC will notify each other when either party becomes aware of a potential project that may be subject to both the IAA and The Environment Act.

(3) Once notified, IAAC and MECC will continue to work with each other and proponents to ensure that:

(a) federal and provincial processes, including assessment and regulatory responsibilities, legislative authorities, and potential requirements are identified;

(b) information about means that would allow Manitoba to address adverse effects within federal jurisdiction that may be caused by the proposed project is shared with IAAC, including the information under 5(1) below, and that IAAC shares information that is relevant to the MECC.

3. Decision-Making About Conduct of a Federal Impact Assessment

(1) IAAC, in considering under paragraphs 16(2)(f.1) and 16(2)(g) of the IAA whether means other than an impact assessment exist to address the adverse effects within federal jurisdiction – and the direct or incidental adverse effects – that may be caused by the carrying out of the project, will consider the extent to which the provincial processes, including assessment and regulatory, will address adverse effects within federal jurisdiction – and the direct or incidental adverse effects – that may be caused by the carrying out of the project.

(2) Should IAAC determine that a federal impact assessment is not required based on the provincial processes addressing adverse effects within federal jurisdiction – and the direct or incidental adverse effects – that may be caused by the carrying out of the project, IAAC will continue to work together with Manitoba, providing appropriate resources when mutually agreed upon, as requested and needed, to:

(a) ensure adverse effects within federal jurisdiction are addressed in the provincial processes;

(b) incorporate the perspectives and/or Indigenous Knowledge of potentially impacted groups in the identification of adverse federal effects and decisions about the measures to address them;

(d) ensure federal permitting considerations are integrated into the provincial processes, to the extent possible;

(e) develop legally binding conditions in relation to the adverse effects within federal jurisdiction, including mitigation measures and follow-up program requirements, with which the proponent must comply.

These factors may also be considered as part of IAAC’s determination on whether a federal impact assessment is required.

(3) When considering a request to designate a project under section 9 of the IAA, the Minister of Environment and Climate Change Canada (Federal Minister), or IAAC acting under the Federal Minister’s delegated authority, will consider the extent to which provincial processes will address adverse effects within federal jurisdiction – and the direct or incidental adverse effects – that may be caused by the carrying out of the project, as set out in section 9(2)(d) of the IAA.

4. Joint Review Panels

(1) Where IAAC is considering whether to recommend that the Federal Minister refer an impact assessment to a review panel, it will consult MECC on the possible establishment of a joint review panel to conduct the assessment of the proposed project.

(2) Where a designated project contains activities regulated under the Canadian Energy Regulator Act or the Nuclear Safety and Control Act and hence must be referred to a review panel under the IAA, IAAC will consult MECC on the possible establishment of a joint integrated review panel for the conduct of the impact assessment.

5. Substitution to Manitoba’s Process or to Harmonized Process

(1) Where a federal impact assessment is required for a proposed project that is subject to both the IAA and The Environment Act, Manitoba may submit a request to substitute the federal assessment for the Province’s process or for a harmonized process as provided for in paragraphs 31(1)(a) and (b) of the Impact Assessment Act. Substitution or harmonization of process may only occur if and when Manitoba requests it and will be subject to any conditions, limitations, or clarifications that Manitoba includes in the request, and as provided for under the Impact Assessment Act.

(2) Manitoba’s Minister charged with the administration of The Environment Act will endeavour to make a written substitution request as early as possible and at the latest, within 10 days of IAAC’s decision under section 16 of the IAA on whether a federal impact assessment is required.

(3) A request for substitution of Manitoba’s process from MECC will confirm how the provincial processes will meet the conditions set out in subsection 33(1) of the IAA and will be made available for public comment on the Canadian Impact Assessment Registry. Where the Federal Minister has approved the substitution request for Manitoba’s process, IAAC and MECC commit to a substituted process carried out by Manitoba which meets the legislative requirements of both Parties.

(4) A request for substitution of a harmonized process will confirm how the provincial process, together with an arrangement between IAAC and MECC for the proposed project, will meet the conditions set out in subsection 33(1) of the IAA (clause 31(1)(b)).

(a) The arrangement will document the roles, responsibilities and activities that will lead to a single, unified process that meets the legislative requirements for both Parties for the assessment of effects of the project and Indigenous consultation, including funding, information sharing and transparency, the inclusion and protection of Indigenous Knowledge. For example, the MECC could address some federal effects in its assessment process while the federal government would assess remaining federal effects, or it could commit to include the federal government’s assessment of federal effects and federal input in its process.

(b) The request for substitution, including the arrangement, will be published for comment on the Canadian Impact Assessment Registry.

(c) The arrangement will then be signed by both Parties and constitute an arrangement for the proposed project pursuant to paragraph 114(1)(f) of the IAA, as required under paragraph 31(1)(b) of the IAA.

(5) For each substituted or substitution to harmonized impact assessment, IAAC and the MECC will jointly prepare a permitting plan as set out in paragraph 18(1)(b) of the IAA. If a joint permitting plan is not appropriate in the circumstances, IAAC will prepare a federal permitting plan and provide it to the MECC.

(6) For greater certainty, in a substituted assessment the Parties each retain decision-making authority, and the responsibility to ensure that the duty to consult and, where appropriate, accommodate Indigenous Peoples has been satisfied. This includes identifying the Indigenous Peoples to be consulted and determining the scope, content and adequacy of consultation. IAAC and Manitoba will coordinate this work to the extent possible.

(7) For greater certainty, once an assessment is substituted for Manitoba’s process, the process and timelines under The Environment Act apply. Where an assessment is substituted for a harmonized assessment, IAAC will carry out its responsibilities within the timeframe set out in The Environment Act or the mutually agreed upon timeline set out in the arrangement established in ss. 5(4) of this agreement.

(8) IAAC and MECC will collaborate and support each other where relevant throughout the process.

6. Co-ordination of Potential Conditions

(1) IAAC and MECC will jointly review potential conditions for the decision statement under the IAA and The Environment Act to minimize duplication and regulatory burden, and to align, where appropriate, descriptions of the applicable project, reporting and notification requirements, terminology and definitions, and deadlines, to the extent possible.

(2) Regardless of the assessment process, IAAC and MECC will seek feedback from one another on the potential conditions referred to in The Environment Act and section 64 of the IAA and, where practicable, coordinate the opportunity for proponents, Indigenous Peoples, and the public to review potential conditions.

7. Co-ordination on Permitting

(1) For projects that require multiple provincial and federal permits and authorizations, Manitoba and Canada will work with key provincial and federal authorities to jointly undertake the following activities:

(a) identify proposed projects for Manitoba and Canada;

(b) establish joint measures that will support streamlined regulatory process, early issues resolution, and effective engagement with Indigenous Peoples. Measures may include, but are not limited to, prioritizing technical resources, aligning funding with the identified projects, and joint regulatory efficiency tables for identified projects;

(c) facilitate the alignment and integration of permitting processes and requirements into the impact/ environmental assessment process, to the extent possible, and improve co-ordination and integration of federal and provincial permitting processes. Specifically, commit to review areas where there may be regulatory overlaps with a view to increasing reliance on provincial authorization processes;

(d) enhance existing joint tools and processes to expedite authorizations and permitting for projects, and implement any specific measures brought forward by Manitoba. These specific measures could include but are not limited to: supporting provincial capacity to lead the project management and permitting processes, prioritizing technical resources for application review, enhancing regulatory co-ordination, conducting Indigenous consultation, and aligning permitting decisions with provincial timelines;

(e) when there is a provincial process, rely on the associated provincial reports and documents to meet subsequent provincial and federal regulatory and permitting processes and requirements, to the extent possible.

8. Indigenous Peoples

(1) IAAC and MECC commit to working together to collaborate on and coordinate open, transparent, effective and timely communications and consultation with Indigenous Peoples. This includes collaborating on the identification of Indigenous communities for consultation throughout assessment processes, aligning and sharing of consultation lists, and coordinating consultation activities to the extent possible.

(2) IAAC and MECC commit to respecting the rights of Indigenous Peoples of Canada recognized and affirmed by Section 35 of the Constitution Act, 1982, supporting meaningful Indigenous participation in the assessment process, and considering and incorporating Indigenous perspectives in their processes to ensure that both Canada’s and Manitoba’s requirements are met.

(3) For certainty, nothing in this Agreement is intended to limit the ability of either IAAC or MECC to collaborate, or enter into agreements or arrangements, with Indigenous Peoples respecting assessments.

9. Information Sharing & Communications

(1) IAAC and MECC will develop a plan to identify opportunities to share information and streamline the collection and public dissemination of information through their respective processes while ensuring each jurisdiction’s legislative requirements are satisfied.

(2) IAAC and MECC will work together with Indigenous Peoples with respect to the sharing and protection of Indigenous Knowledge, including consulting with Indigenous Peoples regarding the sharing of Indigenous Knowledge between IAAC and MECC.

(3) IAAC and MECC agree to share information about federal and provincial permitting progress on matters relevant to the federal and provincial processes.

(4) IAAC and MECC agree to coordinate open, transparent, effective and timely communications with the public to support participation in processes.

(5) IAAC will, as requested and needed, share federal expertise and capacity with MECC to support the conduct of assessments that are substituted for Manitoba’s process or for a harmonized process and to foster sharing of best practices between the parties. This may include staff secondments or other supports as appropriate.

10. Participant Funding

(1) IAAC and MECC will work to coordinate funding for participation in assessment processes, to the extent practicable, including the provision of funding to Indigenous Peoples to support their participation in processes conducted under this Agreement.

11. Application of this Agreement

(1) The Parties agree that neither Canada nor Manitoba concede any jurisdiction, right, power, privilege, prerogative or immunity by entering into this Agreement.

(2) This Agreement does not create or alter any power or duty under any enactment of Canada or Manitoba and is not intended to direct or fetter the exercise of such powers or duties.

(3) Should a proposed project be located on or cross a boundary with another province or territory with a portion of the project located within Manitoba, the Parties would seek to apply the principles and approaches contained herein in co-operation with the other province or territory.

12. General Provisions

(1) This Agreement will be implemented on the date of the last signature of the Parties and may be amended by mutual consent of both IAAC and MECC, or terminated in writing by either party at any time by providing the other party 30 days notice of the intent to terminate this Agreement.

Signatures (Minister-level)