Co-operation Agreement between Prince Edward Island and Canada

WHEREAS Canada respects Prince Edward Island’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 Prince Edward Island and Canada 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 or asserted rights under the Constitution;

WHEREAS Canada and Prince Edward Island have each established 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;

WHEREAS Canada maintains its commitment to the United Nations Declaration on the Rights of Indigenous Peoples and ensures that its assessment processes are informed by, and aligned with, the Declaration’s principles;

WHEREAS Canada and Prince Edward Island are committed, through their respective assessment processes, to respecting Aboriginal and treaty rights, engaging in early, consistent, and meaningful consultation with Indigenous Peoples, in a manner that promotes reconciliation, respects the rights and cultures of Indigenous Peoples;

WHEREAS Canada and Prince Edward Island 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 Prince Edward Island recognize the importance of implementing their assessment 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) and the Environmental Protection Act, and contributes to a positive investment climate in Canada;

WHEREAS Canada and Prince Edward Island agreed 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, enhancing co-ordination of activities on permitting and eliminating duplication; and

THEREFORE, Canada and Prince Edward Island agree to cooperate in the conduct of assessments in accordance with the provisions in this Agreement.

1. Reliance on Prince Edward Island’s Processes and Reciprocity

(1) When a proposed project is primarily a provincial undertaking, Canada is committed to relying on Prince Edward Island’s applicable 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 undertaking 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 Prince Edward Island’s environmental assessment and regulatory process requirements into the federal assessment, if applicable and desired by Prince Edward Island.

2. Early Notification and Information Sharing

(1) Subject to legal requirements related to the protection of information, the Impact Assessment Agency of Canada (IAAC) and the Department of Environment, Energy and Climate Action (DEECA) will implement the following commitments, set out in subsections 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 Prince Edward Island’s assessment and permitting/regulatory processes and Prince Edward Island’s approach to relying on the federal assessment process if applicable and desired by Prince Edward Island.

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

(3) IAAC and DEECA 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;

(b) information about means that would allow Prince Edward Island 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 DEECA.

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 environmental assessment and permitting/regulatory 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 DEECA, as requested and needed, to:

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

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

(c) carry out Crown consultations;

(d) ensure federal permitting considerations are integrated into the assessment process, 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 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) For greater certainly, Prince Edward Island may only address or impose conditions on issues to the extent permitted by its statutory and constitutional authority. This Agreement does not, and is not intended to, expand Prince Edward Island’s jurisdiction or Legislative authority.

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 DEECA 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 DEECA on the possible establishment of a joint integrated review panel for the conduct of the impact assessment.

5. Substitution to Province’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 Environmental Protection Act, Prince Edward Island may submit a request to substitute the federal assessment for the province’s process or to a harmonized process as provided for in paragraphs 31(1)(a) and (b) of the IAA. Substitution or harmonization of processes may only occur if and when Prince Edward Island requests it and will be subject to any conditions, limitations, or clarifications that Prince Edward Island includes in its request and as provided for under the Impact Assessment Act.

(2) The Minister of Environment, Energy and Climate Action will endeavour to make a written substitution request as early as possible of IAAC’s decision under section 16 of the IAA on whether a federal impact assessment is required.

(3) A request, which is at the discretion of Prince Edward Island, for substitution to the provincial process from DEECA will confirm how the provincial assessment process 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 to Prince Edward Island’s process, IAAC and DEECA commit to a substituted assessment process, carried out by DEECA, which meets the legislative requirements of both Parties.

(4) A request, which is at the discretion of Prince Edward Island, for substitution to a harmonized process will confirm how the provincial assessment process, together with an arrangement between IAAC and DEECA for the proposed project, will meet the conditions set out in subsection 33(1) of the IAA.

(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. For example, DEECA 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 impact assessment, IAAC and DEECA 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 DEECA.

(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 Prince Edward Island will coordinate this work to the extent possible.

(7) For greater certainty, once an assessment is substituted to Prince Edward Island’s process, the process under the Environmental Protection Act applies. Where an assessment is substituted to a harmonized assessment, IAAC will carry out its responsibilities as set out in the Environmental Protection Act. or as mutually agreed in the arrangement established in ss. 5(4) of this Agreement.

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

6. Co-ordination of Potential Conditions

(1) IAAC and DEECA will jointly review potential conditions for the decision statement 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 DEECA will seek feedback from one another on the potential conditions for the decision statement 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, Prince Edward Island and Canada will work with key provincial and federal authorities to jointly undertake the following activities:

(a) identify proposed projects for Prince Edward Island and Canada;

(b) establish joint measures that will support streamlined regulatory process, early issues resolution, and effective engagement with Indigenous Peoples. Measures may include 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 Prince Edward Island. 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; and

(e) when there is a provincial environmental assessment 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 DEECA 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 consultation lists, and coordinating consultation activities to the extent possible.

(2) IAAC and DEECA 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 assessments to ensure that both Canada’s and Prince Edward Island’s requirements are met.

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

9. Information Sharing & Communications

(1) IAAC and DEECA will seek to 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 DEECA 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 the Department of Environment, Energy and Climate Action.

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

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

(5) The above commitments are subject to applicable privacy legislation.

10. Participant Funding

(1) IAAC and DEECA 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 Prince Edward Island 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 Prince Edward Island 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 Prince Edward Island, 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 or terminated in writing at any time by mutual consent of both IAAC and DEECA.

Signatures (Minister-level)