Draft Agreement between Quebec and Canada

BETWEEN:

THE GOVERNMENT OF CANADA, represented by:

The Minister of the Environment, Climate Change and Nature

HEREINAFTER REFERRED TO AS “Canada”, FOR ONE PART

AND

THE GOVERNMENT OF QUEBEC, represented by:

The Minister of the Environment, the Fight Against Climate Change, Wildlife and Parks

The Minister responsible for Canadian Relations

HEREINAFTER REFERRED TO AS “Quebec”, FOR THE OTHER PART

HEREINAFTER REFERRED TO AS “the Parties”

PREAMBLE

WHEREAS the Parties agree on the fundamental importance of respecting the division of legislative powers between the two levels of government;

WHEREAS Quebec has exclusive legislative jurisdiction over the development, conservation and management of non-renewable natural resources in the province, and decisions related to the management of those resources in the province as well as jurisdiction over the production of electricity;

WHEREAS the Parties agree that it is desirable to operationalize the principle of “one project, one review, one decision” with a view towards sustainable development, administrative simplicity and efficiency in government action and public spending;

WHEREAS the Parties agree that respect for the principle of “one project, one review, one decision” is desirable to improve predictability for proponents, strengthen the credibility of the assessment process and accelerate decision making for major projects needed to make our economy more resilient, while protecting the environment and respecting the rights of Indigenous Peoples;

WHEREAS the Environment Quality Act (CQLR, c. Q-2) (EQA) and the Impact Assessment Act (SC 2019, c. 28, s. 1) (IAA) provide for environmental assessment processes for projects;

WHEREAS Quebec was a pioneer by adopting the EQA in 1972, making it one of the first governments in the world to pass environmental legislation;

WHEREAS the Parties agree on the rigour and completeness of the environmental impact assessment and review process provided for under the EQA since 1978, which includes the Bureau d’audiences publiques sur l’environnement, and on the effectiveness of the Quebec process in adequately taking environmental impacts into account;

WHEREAS the signing of this Agreement does not constitute a waiver by Quebec of its requests made in writing following the Supreme Court of Canada decision on the reference regarding the Impact Assessment Act (IAA);

WHEREAS Canada and Quebec are committed to respecting the rights of Indigenous Peoples and recognize the importance of implementing their constitutional duty to consult and, where appropriate, accommodate Indigenous communities when they are aware of the potential existence of an asserted ancestral right or title and are contemplating actions that have the potential to adversely impact it;

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

WHEREAS the Parties are signatories to the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement and commit to their full implementation;

AND WHEREAS Canada commits to initiate discussions with Quebec and the signatories of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement with a view to amending Schedule 2 of the IAA with the goal of adding the territories to which the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement apply, as provided for by section 110 of the IAA, in order to continue to ensure respect for the decision-making roles set out in those treaties, with respect to the environmental assessment of projects subject to the regimes established therein.

NOW THEREFORE, Canada and Quebec agree to implement the provisions of this Agreement to avoid duplication in the environmental assessments of certain development projects, and that this is essential for economic growth and the achievement of the development objectives of Quebec and Canada.

1. PURPOSE

1.1 Application of the principle of “one project, one review, one decision”

The purpose of this Agreement is for the Parties to agree on terms to enable full and complete implementation, as permitted under their respective legislation, of the “one project, one review, one decision” principle, with the objective of avoiding duplication while respecting each other’s areas of jurisdiction.

1.2 Excluded territories

The territories subject to the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement are however, excluded from the application of this Agreement, as they are subject to specific impact assessment and review processes. For these territories, the Parties commit to implement these processes in accordance with those Agreements and Title II of the EQA, to avoid any duplication in the environmental assessment of projects subject to this Agreement in northern regions. Canada will rely on these processes to address effects within federal jurisdiction, to the extent that it is confirmed that these processes will address these effects.

2. APPLICABLE ASSESSMENT PROCESSES

The Parties agree to avoid duplication in the environmental assessment of projects subject to this Agreement.

2.1 Application of IAA

(1) The assessment process established under the IAA applies to any proposed project that is a federal work or undertaking or is on federal lands; Canada commits to incorporate Quebec’s requirements into the federal assessment.

(2) For these projects, Quebec commits, to the extent possible, to collaborate with the federal government so that it may carry out its impact assessment as fully and rigorously as possible.

2.2 Application of EQA

(1) Except for projects identified in subsection 2.1(1), the environmental impact assessment and review procedure provided for under Title I of the EQA applies to projects subject to that Act, in accordance with its provisions. Canada will rely on this assessment and the applicable regulatory processes to address adverse effects within federal jurisdiction—and the direct or incidental adverse effects—that may be caused by the carrying out of such projects, as outlined in this Agreement.

(2) In the exceptional case where the environmental impact assessment and review process provided for under Title I of the EQA is also likely to apply to projects identified in subsection 2.1(1), Quebec commits to notify Canada so that the Parties can agree on terms and conditions, in accordance with subsection 3(3).

3. DECISION MAKING CONCERNING FEDERAL IMPACT ASSESSMENTS

(1) Canada acknowledges that the processes provided for under the EQA address a project’s environmental impacts, and may take into account impacts on elements within federal jurisdiction.

(2) Canada, in implementing the provisions of the IAA, in particularly subsection 16(2) and in particular paragraph (f.1), and to the extent reasonable under subsection 16(2), commits to defer to Quebec’s processes to address adverse effects within federal jurisdiction—whether direct or incidental—that may be caused by the carrying out of a project in Quebec, where those processes address potential adverse effects within federal jurisdiction, with the exception of projects identified in subsection 2.1(1) of this Agreement. In such cases, and in accordance with the “one project, one review, one decision” principle, an impact assessment under the IAA will not be required for those projects, given that the impacts on federal jurisdiction will be addressed through processes under the EQA.

Considering the preceding, Canada will provide Quebec with ongoing support, upon request, as reasonable and depending on needs, to:

(a) ensure that adverse effects within federal jurisdiction are adequately addressed in the processes under the EQA; and

(b) ensure that considerations relating to federal permits are incorporated into these assessment processes, to the extent possible.

(3) Where both a federal and provincial assessment apply to a project, Canada will endeavour to minimize duplication with Quebec’s process. The Parties will agree in writing on the specific terms and conditions for minimizing duplication, including roles, responsibilities, activities and timelines associated with the assessment of the project.

4. ISSUANCE OF AUTHORIZATIONS AND LICENCES

(1) Canada and Quebec agree that this Agreement is intended to provide a framework for the environmental assessment step and does not affect:

(a) the issuance, by federal authorities, of the necessary authorizations and permits for the specific aspects within federal jurisdiction under federal acts and regulations other than the IAA;

(b) the issuance, by Quebec authorities, of the necessary authorizations and permits for the specific aspects within Quebec’s jurisdiction under Quebec’s acts and regulations; or

(c) the possibility of the Parties’ developing an approach for coordinating their activities related to the issuance of permits.

(2) The Parties acknowledge that, where a project is subject to impact assessment and review procedure under the EQA, all Quebec legislation respecting the impact assessment and review process for these projects or the projects’ subsequent regulation applies. The Parties note that all projects carried out in Quebec, in whole or in part, must continue to comply with the applicable environmental protection acts and regulations following the environmental assessment phase and the procedure set out in this Agreement.

5. EARLY NOTIFICATION AND INFORMATION SHARING

Where a project is subject to the IAA, for Canada, or the EQA, for Quebec, in accordance with section 2, the Parties agree to:

(1) inform each other as soon as possible when a proponent files notice of a potential project in accordance with the IAA or the EQA; and

(2) work together, as well as with proponents, as early as possible to ensure that:

(a) the proponents are informed of the applicable procedure;

(b) federal and Quebec responsibilities relating to assessment, permitting and regulation, legislative authorities, and potential requirements are identified; and

(c) communication to the other Party on measures that could be implemented to address adverse effects of a project within federal jurisdiction or to address adverse effects within provincial jurisdiction is shared with the other Party.

6. CONSULATION BETWEEN CANADA AND QUEBEC

(1) Canada and Quebec will establish a communication channel to support the implementation of this Agreement, facilitate required exchange of information between federal and Quebec authorities, and simplify the collection and public dissemination of information.

(2) Canada and Quebec agree to coordinate open, transparent, effective and timely communications with the public to foster participation in assessments.

(3) For projects subject to this Agreement, Canada agrees to work with Quebec to ensure consultations with federal departments and organizations in order to take into account all impacts of a project, including impacts within federal jurisdiction, when assessing projects under the EQA. Additionally, Canada agrees to consult with Quebec in order to take into account all impacts of a project, including impacts within Quebec’s jurisdiction, when assessing projects under the IAA.

7. CONSULTATIONS WITH INDIGENOUS COMMUNITIES

(1) In the context of this section, “Indigenous community” refers to any community represented by its band council or by representatives formally mandated by the band council.

(2) The Parties acknowledge the importance of Indigenous communities’ participation in the consultations provided for under the assessment and review processes for projects.

(3) The Parties will establish a collaborative relationship as soon as projects subject to this Agreement are received, to ensure that concerned Indigenous communities are informed as soon as possible and receive the available information necessary to begin.

(4) When either Party conducts consultations with Indigenous communities concerned by the project, information about the consultations and their outcomes will be made public in accordance with their respective obligations and their own consultation frameworks.

(5) The Parties commit to collaborate with Indigenous communities to take measures to protect their knowledge shared during consultations carried out as part of the assessment and review process for projects.

(6) For certainty, nothing in this Agreement is intended to amend applicable legislation or existing agreements regarding consultations and collaboration with Indigenous communities, or to limit the respective ability of the Parties to co-operate, or enter into agreements or arrangements, with Indigenous Peoples respecting assessments.

8. INTERPRETATION AND PRESERVATION OF RIGHTS

(1) The Parties agree that neither Canada nor Quebec concedes or relinquishes their jurisdictions, rights, powers, privileges, prerogatives or immunities by entering into this Agreement.

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

(3) The Parties agree that signing this Agreement does not prejudice the respective rights, remedies or positions of Quebec and Canada regarding their respective jurisdictions, particularly with respect to Quebec’s written requests following the Supreme Court of Canada’s judgment in Reference re Impact Assessment Act.

(4) Despite signing this Agreement, Quebec reserves all its remedies, including the possibility of participating in a court challenge to the IAA.

9. PARTIES’ REPRESENTATIVES

For the purposes of this Agreement, the Parties agree to communicate through their respective representatives, who can be reached at:

a) For Canada:

Vice President, Operations Sector
Impact Assessment Agency of Canada
160 Elgin Street, 22nd floor
Ottawa, Ontario
K1A 0H3
Telephone: 613-957-0700

b) For Quebec:

Assistant Deputy Minister for Environmental Authorizations and Regional Operations
Ministère de l’Environnement, de la Lutte contre les changements climatiques, de la Faune et des Parcs, Marie Guyart Building, 30th floor
675 René-Lévesque Blvd. East
Québec, Quebec G1R 5V7
Telephone: 418-521-3861

10. AMENDMENT OF THE AGREEMENT

Any amendment to the content of this Agreement must be the subject of a written agreement between the Parties (addendum). No amendment will be valid unless it is in writing and signed by both Parties. The addendum may not change the nature of this agreement and will form an integral part of it.

11. ACCESS TO INFORMATION REQUESTS

The Parties commit to inform each other of any request received for access to information concerning this Agreement, particularly the information and documents exchanged, and to consult each other before responding to the request. For the purposes of this section, an access to information request is a request received, managed, and responded to in accordance with the Act respecting Access to documents held by public bodies and the Protection of personal information (CQLR, c A-2.1) or Canada’s Access to Information Act (RSC 1985, c A-1), as the case may be.

12. ISSUES MANAGEMENT

(1) The Parties will make reasonable effort to resolve any issues that could be related to the implementation of this Agreement.

(2) Should differences in views arise between the Parties on any matters related to the interpretation or implementation of this Agreement, the Parties will seek to resolve their differences at the working level. Where these efforts are unsuccessful, either Party may request a meeting a senior level, to seek a resolution or to agree on a process for resolving the issue and a timeframe within which to resolve it.

(3) If the issue is not resolved after the timeframe agreed to, the matter may be referred to the Deputy Minister level, and the Deputy Ministers will make reasonable efforts to facilitate resolution of the issues by the Parties.

(4) Canada and Quebec recognize that this issue management process does not fetter the authority of Canada under the IAA or Quebec under the EQA.

13. GENERAL PROVISIONS

(1) This Agreement will come into force on the date of the last signature by the Parties.

(2) A Party may terminate this Agreement after providing at least 12 months notice, in writing, to the other Party.

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

(4) All representations and obligations of each Party that are set out in this Agreement and that, by their nature, must survive the expiry or termination of this Agreement will survive the expiry or termination of this Agreement until they have been fulfilled or have, by their nature, expired.

(5) This Agreement constitutes the complete and entire agreement between the Parties. It supersedes all communications, negotiations, representations, promises, guarantees or agreements, whether written or oral, made between the Parties prior to signing this Agreement and relating to the same subject matter.

Signatures (Minister-level)