Draft Co-operation Agreement between Saskatchewan and Canada

WHEREAS Saskatchewan has exclusive 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 as well as jurisdiction over local works and undertakings, property and civil rights, local matters of a private nature, provincial Crown lands and the generation of electricity;

WHEREAS Saskatchewan and Canada recognize that responsibilities for the environment are shared as are obligations to consult with, and where appropriate, accommodate Indigenous Peoples when the Crown contemplates actions that could adversely impact their rights under the Constitution;

WHEREAS Canada and Saskatchewan have each established robust processes for the high-quality assessment of the effects of certain types of projects, informed by rigorous science, Indigenous consultation, public participation, and community knowledge, and that lead to sound decisions;

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 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 Saskatchewan are committed, through their assessment processes, to respecting Aboriginal and Treaty rights, 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;

WHEREAS Canada and Saskatchewan are committed to increasing regulatory certainty to attract capital and promote our economic resilience while ensuring environmental protections and Indigenous rights are upheld;

WHEREAS Canada and Saskatchewan 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 Assessment Act (EAA), and contributes to a positive investment climate in Canada;

WHEREAS Canada and Saskatchewan agree to work towards efficiently and effectively implementing “one project, one review” with the goal of a single assessment for all projects, in a manner that respects federal and provincial jurisdiction, defers to provincial processes and Saskatchewan’s jurisdiction for managing natural resources in the province, enhances co-ordination of regulatory activities, and eliminates duplication as outlined in this agreement; and

WHEREAS Canada is committed to ensuring that federal review and decision-making timelines take no longer than one year once all information from the project proponent has been received, as provided for under applicable federal legislation.

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

1. Reliance on Saskatchewan’s Processes and Reciprocity

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

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

2. Early Notification and Information Sharing

(1) Impact Assessment Agency of Canada (IAAC) and the Ministry of Environment (the ministry) 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 Saskatchewan’s assessment and permitting/regulatory processes and Saskatchewan’s approach to relying on the federal assessment process if applicable and desired by Saskatchewan.

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

(3) IAAC and the ministry 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 Saskatchewan to address adverse effects within federal jurisdiction that may be caused by the proposed project is shared with IAAC and that IAAC shares information that is relevant to the ministry.

3. Decision-making About the Conduct of a Federal Impact Assessment

(1) IAAC, in considering a request to designate a project under section 9 of the IAA or whether means other than an impact assessment exist to address the adverse effects within federal jurisdiction under sections 16(2)(f.1) and 16(2)(g) of the IAA – and the direct or incidental adverse effects – that may be caused by the carrying out of the project, will, as is reasonable, and after taking into account the factors under sections 9 or 16 of the IAA:

a. in alignment with 1(1) of the Agreement, avoid duplicative decision-making processes by relying on the provincial environmental assessment or regulatory processes in circumstances where Saskatchewan confirms that those processes will address the adverse effects within federal jurisdiction, as defined in the IAA, of projects that are primarily regulated by Saskatchewan and/or there is a means other than impact assessment to address such effects;

b. in the event that IAAC has determined that the sole trigger for a federal assessment for a designated project is limited to direct or incidental adverse effects related to a federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in part, of a physical activity or designated project, IAAC will rely on Saskatchewan’s environmental assessment and/or permitting processes for the project as applicable to address those effects.

(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 and/or resources to the ministry, 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 the ministry with such other resources as may be reasonably required to effectively assess such potential effects. Such provision of continued support may be considered as part of IAAC’s determination on whether a federal impact assessment is required.

4. Joint Review Panels

(1) Where a designated project could be referred to a review panel under the IAA, IAAC will consult the ministry on the possible establishment of a joint panel for the conduct of the impact assessment.

5. Substitution to Saskatchewan’s Process or to Harmonized Process

(1) Where a federal impact assessment is required for a proposed project that is also subject to a provincial environmental assessment, Saskatchewan will determine, in consultation with the project proponent and IAAC, as appropriate, whether to submit a request to substitute the federal assessment to the Province’s process or to a harmonized process as provided for in paragraphs 31(1)(a) and (b) of the IAA and section 5(3) of the EAA.

(2) A request for substitution to Saskatchewan’s process from the ministry will confirm how the provincial assessment process on its own, or together with an arrangement between IAAC and the ministry, will meet the conditions set out in subsection 33(1) of the IAA. Such arrangement would document the roles, responsibilities, activities and timelines that will lead to a single assessment process that meets the legislative requirements of both Parties pursuant to subsection 114(1)(f) of the IAA, as required under subsection 31(1)(b) of the IAA.

(3) In a substituted assessment the Parties will each retain the responsibility to ensure that the duty to consult and, where appropriate, accommodate Indigenous peoples has been satisfied. IAAC and Saskatchewan will coordinate consultation to the extent possible.

(4) Saskatchewan will conduct consultation according to provincial policies and practice, including Saskatchewan’s First Nation and Métis Consultation Policy Framework, 2023. Saskatchewan 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.

(5) Once an assessment is substituted to Saskatchewan’s process, the process and timelines under the EAA and provincial policies apply. Where an assessment is substituted to a harmonized assessment, IAAC will carry out its responsibilities within the timeframe set out in the arrangement established in 5(2) of the Agreement. IAAC will endeavour to align the timing of the federal decision with provincial decision timing.

(6) IAAC and the ministry will collaborate and support each other throughout the process.

6. Co-ordination of Potential Conditions and Decision-Making

(1) At the conclusion of a substituted or harmonized assessment, the Parties will retain final decision-making authority pursuant to their respective legislation.

(2) Regardless of the approach to the assessment, IAAC and the ministry will jointly review potential conditions for the decision statement under the IAA and Ministerial Decision under the EAA to minimize duplication and regulatory burden, and to align, where appropriate, descriptions of the applicable project, monitoring, reporting and notification requirements, follow-up requirements, terminology and definitions, and deadlines, to the extent possible.

a. Where duplication of potential conditions has been identified, federal conditions will defer to provincial conditions and authority, when applicable provincial legislation, regulation, policies and/or processes exist.

(3) Where practical and appropriate, IAAC and the ministry will coordinate the opportunity for proponents, Indigenous Peoples, and the public to review potential assessment conditions.

7. Co-ordination on Permitting During Assessments

(1) For each substituted and harmonized impact assessment, IAAC will prepare a permitting plan as set out in paragraph 18(1)(b) of the IAA and provide it to the ministry and proponent for integration into the project’s environmental impact statement, as appropriate.

(2) Regardless of the approach to the assessment, Saskatchewan and Canada will endeavour to work with key provincial and federal authorities on major projects to:

a. ensure the consideration of downstream permitting and approval requirements in the assessment process, as appropriate, while recognizing the nature and intended functions of assessment and permitting processes;

b. share information about federal and provincial permitting progress on matters relevant to the federal and provincial assessments;

c. consider joint measures that could be undertaken to further support streamlined regulatory processes, early issues resolution, and effective engagement with Indigenous Peoples;

d. consider opportunities to improve co-ordination and integration of federal and provincial permitting processes and enhance existing joint tools and processes to expedite authorizations and permitting for major projects, including opportunities to increase reliance on provincial authorization processes; and

e. increase reliance on provincial reports and documents to meet subsequent federal regulatory and permitting processes and requirements, to the extent possible.

8. Indigenous Peoples

(1) IAAC and the ministry 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 and coordinating consultation activities to the extent possible.

(2) For all assessments, Saskatchewan will conduct consultation activities in alignment with current provincial policies and practices, including Saskatchewan’s First Nation and Métis Consultation Policy Framework, 2023.

(3) IAAC and the ministry 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 incorporating Indigenous perspectives in assessments to ensure that both Canada’s and Saskatchewan’s requirements are met.

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

9. Information Sharing & Communications

(1) IAAC and the ministry will seek 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 the ministry 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 ministry.

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

10. Participant Funding

(1) IAAC and the ministry will work to coordinate funding for participation in assessment, to the extent practicable, including the provision of funding to 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 Saskatchewan 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 Saskatchewan 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 Saskatchewan, the Parties would seek to apply the principles and approaches contained herein in co-operation with the other province or territory.

12. Issues Management

(1) The Parties will make reasonable efforts to agree on the interpretation and application of this Agreement and will work with each other to resolve issues related to the implementation of this Agreement through collaboration. This includes a commitment to provide reasonable advance notice to one another of decisions related to the implementation of this Agreement and an opportunity to provide comments.

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

(3) If the issue has not been resolved after the timeframe agreed to by the senior officials at the onset of the issue management process, the matter may be referred to the President of IAAC and the Deputy Minister of the ministry to facilitate resolution of the issues by the Parties. Where a matter is referred to either Party under this section, the President of IAAC and the Deputy Minister of the ministry will make reasonable efforts to facilitate resolution of the issues by the Parties.

(4) IAAC and the ministry recognize that this issue management process does not fetter the authority of IAAC under the IAA or of Saskatchewan under the EAA.

13. 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 the ministry.

(2) This Agreement can be terminated by either Party after providing 90 days written notice to the other party.

(3) Notwithstanding the termination of this Agreement under clause 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)

For Saskatchewan, the English version of this agreement is authoritative.