Co-operation Agreement between Newfoundland and Labrador and Canada

Draft Co-operation Agreement between Newfoundland and Labrador and Canada

on Environmental and Impact Assessment

WHEREAS Newfoundland and Labrador has constitutional jurisdiction over the development, conservation and management of natural resources in the province, and decisions related to the management of those resources in the province;

AND WHEREAS Canada and Newfoundland and Labrador 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 have potential to adversely impact rights of Indigenous Peoples recognized and affirmed by Section 35 of the Constitution Act, 1982.

AND WHEREAS Canada and Newfoundland and Labrador have each established robust processes for the high-quality assessment of the effects of certain types of projects, informed by rigorous science, Indigenous and community knowledge, and public participation.

AND WHEREAS each of Canada’s and Newfoundland and Labrador’s decisions under their respective assessment frameworks are limited to effects within their respective jurisdictions that may be caused by certain types of projects;

AND WHEREAS Canada and Newfoundland and Labrador are committed, through their assessment processes, to respecting rights of Indigenous Peoples recognized and affirmed by Section 35 of the Constitution Act, 1982 and engaging in meaningful consultation with Indigenous groups in a manner that promotes reconciliation and respects the rights of Indigenous Peoples recognized and affirmed by Section 35 of the Constitution Act, 1982;

AND WHEREAS Canada and Newfoundland and Labrador are committed to increasing regulatory certainty in order to attract capital and promote our economic resilience while ensuring environmental protections and upholding constitutional obligations respecting the rights of Indigenous Peoples recognized and affirmed by Section 35 of the Constitution Act, 1982;

AND WHEREAS Canada maintains its commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP);

AND WHEREAS Newfoundland and Labrador advances Indigenous-Crown relations in accordance with existing Aboriginal law and Section 35 of the Constitution Act, 1982 and has made no legislative commitment to implement UNDRIP and does not apply it as law;

AND WHEREAS Canada and Newfoundland and Labrador recognize the importance of implementing their assessment processes in a manner that respects federal and provincial jurisdiction and is transparent, coordinated, efficient and timely, enables each of them to exercise their respective powers and duties under the Impact Assessment Act and the Environmental Protection Act, and contributes to a positive investment climate in Newfoundland and Labrador and Canada;

AND WHEREAS Canada and Newfoundland and Labrador agree to work toward efficiently and effectively implementing “one project, one review” with the goal of a single assessment 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, and enhances co-ordination of activities on permitting and eliminating duplication;

AND WHEREAS the Impact Assessment Act provides for regional and strategic assessments that can help improve the effectiveness and efficiency of subsequent project assessments and other decision-making processes;

NOW THEREFORE, Canada and Newfoundland and Labrador agree to cooperate in the conduct of assessments in accordance with the provisions of this Agreement.

1. Reliance on Newfoundland and Labrador’s Processes and Reciprocity

(1) When a proposed project is primarily a provincial undertaking and subject to a provincial environmental assessment process, Canada is committed to relying on Newfoundland and Labrador’s applicable environmental assessment and regulatory processes to address the adverse effects within federal jurisdiction of a proposed project, to the greatest extent possible.

(2) Conversely, when a proposed project is primarily a federal undertaking or is on federal lands, such as, but not limited to certain ports, a nuclear project or an interprovincial road, Canada is committed, to the greatest extent possible, to integrating Newfoundland and Labrador’s environmental assessment and regulatory process requirements into the federal assessment, if applicable and desired by Newfoundland and Labrador.

2. Early Notification and Information Sharing

(1) The Impact Assessment Agency of Canada (IAAC) and Newfoundland and Labrador’s Department of Environment, Conservation and Climate Change (ECC) will implement the following commitments, set out in sections 2(2) and 2(3) regarding early notification and information sharing, to ensure adequate/robust information is available to inform Canada’s approach to relying on Newfoundland and Labrador’s assessment and permitting/regulatory processes.

(2) IAAC and ECC will notify each other as early as possible of a potential project that may be subject to both the Impact Assessment Act and the Environmental Protection Act.

(3) IAAC and ECC will work with each other and proponents, as early as possible, to ensure that:

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

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

(4) IAAC and ECC or other provincial departments, as appropriate, will endeavour to notify Indigenous groups as early as possible, and share information where possible, regarding projects subject to this Agreement.

(5) If IAAC intends to undertake a regional assessment within Newfoundland and Labrador, or a strategic assessment, under the Impact Assessment Act, IAAC will notify ECC. In such circumstances, IAAC will also endeavour to inform Indigenous groups as early as possible and share information where possible.

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 Impact Assessment Act 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 environmental assessment and permitting/regulatory processes, including federal departmental participation in 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.

(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 provide for continued support to ECC, as requested and reasonable, including coordination of federal advice related to technical and regulatory aspects of the project related to effects within federal jurisdiction, or providing Newfoundland and Labrador with such other resources as may be reasonably required to effectively address such potential effects to Canada’s satisfaction. This continued support and/or resources may 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 Impact Assessment Act, the federal minister, or IAAC acting under the federal minister’s delegated authority, will consider the extent to which provincial processes informed by federal department participation in these 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 Impact Assessment Act.

4. Joint Review Panels

(1) Where IAAC is considering whether to recommend that the Minister of Environment and Climate Change Canada refer an impact assessment to a review panel, it will consult with ECC on the possible establishment of a joint review panel to conduct the assessment of the proposed project. Should a joint review panel be established, both Canada and Newfoundland and Labrador will have a joint role in the selection of panel members.

(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 Impact Assessment Act, IAAC will consult with ECC on the possible establishment of a joint integrated review panel for the conduct of the impact assessment.

5. Substitution to a Harmonized Process

(1) Where a federal impact assessment is required for a proposed project that is subject to both the Impact Assessment Act and the Environmental Protection Act, Newfoundland and Labrador may submit a request to substitute the federal assessment to a harmonized process as provided for in paragraphs 31(1) (b) of the Impact Assessment Act and section 72 of the Environmental Protection Act. Substitution to a harmonized process may only occur if and when Newfoundland and Labrador requests it and will be subject to any conditions, limitations, or clarifications that Newfoundland and Labrador includes in its request, and as provided for under the Impact Assessment Act.

(2) The Newfoundland and Labrador Minister of Environment, Conservation and Climate Change will endeavour to make a written substitution request as early as possible after IAAC’s decision under section 16 of the Impact Assessment Act on whether a federal impact assessment is required.

(3) A request for substitution to a harmonized process will confirm how the provincial assessment process, together with an arrangement between IAAC and ECC for the proposed project, will meet the conditions set out in subsection 33(1) of the Impact Assessment Act.

(a) IAAC and ECC will work together to 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, ECC could address some federal effects in its assessment process while the federal government would assess remaining federal effects, or ECC 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 Impact Assessment Act, as required under paragraph 31(1)(b) of the Impact Assessment Act.

(4) For each substituted impact assessment, IAAC and ECC will jointly prepare and implement a permitting plan as set out in paragraph 18(1)(b) of the Impact Assessment Act. If a joint permitting plan is not appropriate in the circumstances, IAAC will prepare a federal permitting plan and provide it to ECC.

(5) For greater certainty, in a substitution to a harmonized process, the Parties each retain decision-making authority, and the responsibility to ensure that each Party’s duty to consult and, where appropriate, accommodate Indigenous groups, has been satisfied. This includes identifying the Indigenous groups to be consulted and determining the scope, content and adequacy of consultation. IAAC and ECC will coordinate this work to the extent possible. IAAC is responsible for conducting any consultation and providing any accommodation determined necessary by IAAC that is outside of provincial policies and practices.

(6) For greater certainty, once an assessment is substituted to a harmonized assessment, IAAC will carry out its responsibilities within the timeframe set out in the Newfoundland and Labrador Environmental Assessment Regulations, 2003 or the mutually agreed upon timeline set out in the arrangement established as per subsection 5(3) of this Agreement.

(7) IAAC and ECC will collaborate and support each other where relevant throughout the process.

6. Co-ordination of Potential Mitigation Measures

(1) IAAC and ECC will jointly review potential mitigations for the decision statement under the Impact Assessment Act and the Decision Letter, as applicable, under the Newfoundland and Labrador Environmental Protection 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 ECC will seek feedback from one another on the potential mitigations to adverse environmental effects.

7. Co-ordination on Permitting

(1) Canada and Newfoundland and Labrador agree that this agreement is intended to govern the environmental and impact assessment process and does not affect the possibility that the parties may develop an approach to coordinate their permitting activities.

8. Indigenous Peoples

(1) IAAC and ECC commit to working together to collaborate on and coordinate open, transparent, effective and timely communications and consultation with Indigenous groups whose rights are recognized and affirmed by Section 35 of the Constitution Act, 1982. This includes collaborating on the identification of Indigenous groups for consultation throughout assessment processes, aligning consultation lists, and coordinating consultation activities, to the extent possible.

(2) IAAC and ECC commit to respecting the rights of Indigenous Peoples recognized and affirmed by Section 35 of the Constitution Act, 1982, supporting Indigenous participation in the assessment process, and considering Indigenous perspectives in assessments to ensure that both Canada’s and Newfoundland and Labrador’s requirements are met.

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

9. Information Sharing and Communications

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

(2) IAAC and ECC will work together with Indigenous groups whose rights are recognized and affirmed by Section 35 of the Constitution Act, 1982 with respect to the sharing and protection of Indigenous knowledge.

(3) IAAC and ECC will share information about federal and provincial permitting progress on matters relevant to the federal and provincial assessments.

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

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

10. Participant Funding

(1) IAAC, in consultation with ECC, will develop procedures outlining how federal funds will be distributed to eligible recipients, including Indigenous groups, to support their participation in assessments conducted under this Agreement.

11. Application of this Agreement

(1) The Parties agree that neither Canada nor Newfoundland and Labrador 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 Newfoundland and Labrador 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 Newfoundland and Labrador, the Parties would seek to apply the principles and approaches contained herein in co-operation with the other province or territory.

13. General Provisions

(1) This Agreement will come into effect on the date of the last signature of the Parties and may be amended in writing at any time by mutual consent of both Parties.

(2) This Agreement can be terminated by either Party after providing 12 months notice to the other Party.

(3) Notwithstanding the termination of this Agreement under 13(2), this Agreement continues to apply to any assessments that were being carried out under it on the day the Agreement was terminated.

Signatures (Minister-level)