Co-operation Agreement between Nova Scotia and Canada

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

WHEREAS Nova Scotia and Canada recognize that each jurisdiction has responsibilities for the environment and obligations to consult with, and where appropriate, accommodate Indigenous Peoples when the Crown contemplates actions that could adversely impact Section 35 rights under the Constitution;

WHEREAS Canada and Nova Scotia have each established robust processes for the high-quality assessment of the effects of certain types of projects, informed by rigorous science, and Indigenous and community knowledge;

WHEREAS Canada’s decisions under its assessment framework are limited to adverse effects within federal jurisdiction that may be caused by certain types of projects;

WHEREAS Canada and Nova Scotia are committed to respecting Aboriginal and treaty rights, engaging in meaningful consultation, while advancing economic opportunities;

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

WHEREAS Nova Scotia 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;

WHEREAS Canada and Nova Scotia 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 Nova Scotia 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 (IAA) and the Nova Scotia Environment Act (NS EA), and contributes to a positive investment climate in Canada;

WHEREAS Canada and Nova Scotia agree to work toward efficiently and effectively implementing “one project, one review” where each level of government has constitutional responsibilities with the goal of a single assessment for projects that require both a federal and provincial assessment in a manner that enhances co-ordination activities on permitting and eliminates duplication;

WHEREAS regional and strategic assessments carried out under the IAA can help improve the effectiveness and efficiency of subsequent project assessments and other decision-making processes; and

THEREFORE, Canada and Nova Scotia agree to cooperate in the conduct of assessments in accordance with the provisions in this Agreement.

1. Reliance on Nova Scotia’s Processes and Reciprocity

(1) When a proposed project is primarily provincially regulated and subject to a provincial environmental assessment process, Canada will recognize that Nova Scotia as best placed to undertake an assessment and will rely on Nova Scotia’s applicable environmental assessment and regulatory processes to address the adverse effects within federal jurisdiction of a proposed project, as outlined in this Agreement.

(2) When a proposed project is or includes a federal work or undertaking or is on federal lands, Canada is committed to integrating Nova Scotia’s environmental assessment and regulatory process requirements into the federal assessment, if applicable and desired by Nova Scotia as outlined in this Agreement.

2. Early Notification and Information Sharing

(1) Impact Assessment Agency of Canada (IAAC) and Nova Scotia’s Department of the Environment and Climate Change (NSECC) will implement the following commitments regarding early notification and information sharing, to ensure sufficient information is available to inform Canada’s approach to relying on Nova Scotia’s assessment and permitting/regulatory processes and Nova Scotia’s approach to relying on the federal assessment process if applicable and desired by Nova Scotia.

(2) IAAC and NSECC will notify each other as early as possible of a potential project that may be subject to both the IAA and NS EA.

(3) IAAC and NSECC 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 Nova Scotia 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 NSECC.

3. Decision-making about conduct of a federal impact assessment

(1) In alignment with 1(1) of this Agreement, IAAC commits to avoiding duplicative decision-making processes related to assessments by relying on provincial processes in circumstances where Nova Scotia confirms that provincial environmental assessment or regulatory processes will address potential adverse effects in federal jurisdiction – and the direct or incidental adverse effects – that may be caused by the carrying out of the project, as is reasonable after taking into account the factors in subsection 16(2) of the IAA.

(2) In such circumstances IAAC will provide for continued support and/or resources to NSECC, as requested and reasonable. This may include coordination of federal advice related to technical and regulatory aspects of the project related to effects within federal jurisdiction, or providing Nova Scotia with such other resources as may be reasonably required to effectively assess such potential effects to Canada’s satisfaction. Such provision of continued federal 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 IAA, the 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 paragraph 9(2)(d) of the IAA.

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 NSECC 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 Nova Scotia 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 IAA, IAAC will consult NSECC 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 IAA and NS EA, Nova Scotia may submit a request to substitute the federal assessment to a harmonized process as provided for in paragraphs 31(1)(a) and (b) of the IAA.

(2) Nova Scotia’s Minister of the Environment and Climate Change will endeavour to make a written request for a harmonized process 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 a harmonized process will confirm how the provincial assessment process, together with an arrangement between IAAC and NSECC for the proposed project will meet the conditions set out in subsection 33(1) of the IAA.

(a) The project level 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. For example, the NSECC 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 a harmonized process, including the project level arrangement, will be published for comment on the Canadian Impact Assessment Registry.

(c) The project level 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.

(4) For each harmonized impact assessment, IAAC and NSECC 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 NSECC.

(5) For greater certainty, in a harmonized assessment the Parties each retain decision-making authority, and the responsibility to ensure that the duty to consult is met 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 Nova Scotia will coordinate this work to the extent possible.

(6) NSECC will conduct consultation according to provincial policies and practice. NSECC does not accept any delegation of federal policies or practices related to consultation and IAAC is responsible for conducting any consultation determined necessary by IAAC that is outside of provincial policies and practices.

(7) For greater certainty, where an assessment is substituted to a harmonized assessment, the Parties will determine together whether IAAC will carry out its responsibilities within the timeframe set out in NS EA or a mutually agreed upon timeline set out in the arrangement established in ss. 5(3).

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

6. Co-ordination of Potential Conditions

(1) IAAC and NSECC will jointly review potential conditions for the decision statement under the IAA and the Nova Scotia approval document 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 NSECC will seek feedback from one another on the potential conditions referred to in section 40 of the NS EA 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) Canada and Nova Scotia 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 NSECC commit to working together to co-operate on and coordinate open, transparent, effective and timely communications and consultation with Indigenous Peoples. This includes co-operating on the identification of Indigenous communities for consultation throughout assessment processes and coordinating consultation activities to the extent possible, recognizing and acknowledging that Nova Scotia has made no legislative commitment to implement UNDRIP and does not apply it as law.

(2) For all assessments, NSECC will conduct consultation activities in accordance with existing Aboriginal law and Section 35 of the Constitution Act, 1982.

(3) IAAC and NSECC commit to respecting the rights of Indigenous Peoples of Canada recognized and affirmed by Section 35 of the Constitution Act, 1982.

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

9. Information Sharing & Communications

(1) IAAC and NSECC 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 NSECC will work together with Indigenous Peoples with respect to the sharing and protection of Indigenous Knowledge between IAAC and NSECC.

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

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

10. Participant Funding

(1) IAAC and NSECC will develop procedures outlining how federal funds will be distributed to eligible recipients, including Indigenous Peoples, to support their participation in assessments conducted under this agreement.

11. Application of this Agreement

(1) The Parties agree that neither Canada nor Nova Scotia 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 Nova Scotia 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 Nova Scotia, 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 in writing at any time by mutual consent of both IAAC and NSECC.

(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 12(2), this Agreement continues to apply to any assessments that were being carried out under it on the day the Agreement was terminated.

13. Review

(1) The Parties agree to meet at least once a year to discuss the ongoing operation and performance of this Agreement and in particular progress towards achieving the goal of “one project, one review”.

Signatures (Minister-level)