Co-operation Agreement between New Brunswick and Canada

WHEREAS Canada respects New Brunswick’s legislative 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;

AND WHEREAS New Brunswick 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 have potential to adversely impact the established or asserted rights of Indigenous Peoples;

AND WHEREAS Canada and New Brunswick have each established robust processes for the high-quality assessment of the effects of certain types of projects, informed by Indigenous engagement and consultation, and that lead to sound decisions;

AND WHEREAS each of Canada’s and New Brunswick’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 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;

AND WHEREAS Canada and New Brunswick are committed, through their assessment processes, to respecting Aboriginal and treaty rights and 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;

AND WHEREAS Canada and New Brunswick 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 Aboriginal and treaty rights;

AND WHEREAS Canada and New Brunswick 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 and the Clean Environment Act, and contributes to a positive investment climate in Canada;

AND WHEREAS Canada and New Brunswick 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 jurisdictions and focuses on enhancing co-ordination of activities on permitting and eliminating duplication; and

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

1. Reliance on New Brunswick’s Processes and Reciprocity

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

2. Early Notification and Information Sharing

(1) The Impact Assessment Agency of Canada (IAAC) and New Brunswick’s Department of Environment and Local Government (DELG) 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 New Brunswick’s assessment and permitting/regulatory processes and New Brunswick’s approach to relying on Canada’s assessment process, in situations where it is applicable and desired by New Brunswick.

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

(3) IAAC and DELG 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 New Brunswick 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 DELG.

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 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 DELG, as requested and needed, to:

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

(b) consider Indigenous perspectives and input 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; and

(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 Impact Assessment Act, 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 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 DELG 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 Impact Assessment Act, IAAC will consult with DELG 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 Impact Assessment Act and the Clean Environment Act, New Brunswick 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 Impact Assessment Act. Substitution or harmonization of processes may only occur if and when New Brunswick requests it and will be subject to any conditions, limitations, or clarifications that New Brunswick includes in its request, and as provided for under the Impact Assessment Act.

(2) The New Brunswick Minister of Environment and Climate Change 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 Impact Assessment Act on whether a federal impact assessment is required.

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

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

(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, DELG could address some federal effects in its assessment process while the federal government would assess remaining federal effects, or DELG 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.

(5) For each substituted impact assessment, IAAC and DELG will jointly prepare 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 DELG.

(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 DELG will coordinate this work to the extent possible.

(7) For greater certainty, once an assessment is substituted to New Brunswick’s process, the process and timelines under the New Brunswick Environmental Impact Assessment Regulation – Clean Environment Act apply. Where an assessment is substituted to a harmonized assessment, IAAC will carry out its responsibilities within the timeframe set out in the New Brunswick Environmental Impact Assessment Regulation – Clean Environment Act or the mutually agreed upon timeline set out in the arrangement established as per subsection 5(4) of this Agreement.

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

6. Co-ordination of Potential Conditions

(1) IAAC and DELG will jointly review potential conditions for the decision statement under the Impact Assessment Act and the Certificate of Determination or the Environmental Impact Assessment Approval, as applicable, under the New Brunswick Environmental Impact Assessment Regulation - Clean 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 DELG will seek feedback from one another on the potential conditions referred to in subsections 6(6) and 16(2) of the New Brunswick Environmental Impact Assessment Regulation – Clean Environment Act and section 64 of the Impact Assessment Act 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, New Brunswick and Canada will work with key provincial and federal authorities to jointly undertake the following activities:

(a) identify proposed projects for New Brunswick 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 New Brunswick. 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 DELG 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 DELG 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 New Brunswick’s requirements are met.

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

9. Information Sharing & Communications

(1) IAAC and DELG 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 DELG 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 DELG.

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

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

10. Participant Funding

(1) IAAC and DELG will develop procedures outlining how funding 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 New Brunswick 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 New Brunswick 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 New Brunswick, the Parties would seek to apply the principles and approaches contained herein in co-operation with the other province or territory.

12. General Provisions

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 DELG.

Signatures (Minister-level)