Canada-Yukon Agreement on Environmental Assessment Cooperation (2004)

Preamble

WHEREAS Canada and Yukon are both signatories to a Canada-wide Accord on Environmental Harmonization (the Accord) and its Sub-agreement on Environmental Assessment (the Sub-agreement);

WHEREAS Canada and Yukon respect each other's jurisdiction, including a shared responsibility for the environment;

WHEREAS Canada and Yukon believe that their established processes for environmental assessment, which operate in a framework of legislation and government policies, can be exercised in a cooperative and coordinated manner;

WHEREAS Canada and Yukon have agreed that when an environmental assessment for a project is required by Canada pursuant to the Canadian Environmental Assessment Act and an environmental assessment is required by Yukon pursuant to the Environmental Assessment Act, a cooperative environmental assessment will be undertaken to generate the type and quality of information and conclusions on environmental effects required by all Parties making decisions on the basis of the cooperative environmental assessment;

THEREFORE Canada and Yukon agree to implement the Sub-agreement through the following provisions.

Definitions

In this Agreement:

"Cooperative environmental assessment"

means the environmental assessment of a project where Canada and Yukon have an environmental assessment responsibility and that they cooperate through the Lead Party's assessment process to meet the legal environmental assessment requirements of both Parties through a single environmental assessment process.

"Environmental assessment"

means an assessment of the environmental effects of a project conducted by Canada in accordance with the Canadian Environmental Assessment Act or by Yukon in accordance with the Environmental Assessment Act.

"Environmental assessment responsibility"

means the powers, duties or functions, the exercise of which requires an environmental assessment, in accordance with the Canadian Environmental Assessment Act or in accordance with the Environmental Assessment Act, as the case may be.

"Implementing office"

means the office designated by the Yukon under clause 7 or the office designated by Canada under clause 8, as the case may be, and 'implementing offices' means both offices.

"Interest"

means the environmental management responsibilities of a Party related to a project, the exercise of which does not require a legislated environmental assessment.

"Joint review panel"

means a panel established by Yukon, pursuant to the Environmental Assessment Act, and by Canada, pursuant to the Canadian Environmental Assessment Act, the members of which are appointed by Canada and Yukon.

"Lead Party"

means the Party as determined under clause 5.6.0 of the Sub-agreement and clauses 30, 31 and 32 of this Agreement.

"Party"

means either the Government of Yukon or the Government of Canada and 'Parties' means the Government of Yukon and the Government of Canada.

"Project"

means a project as defined in subsection 2(1) of the Canadian Environmental Assessment Act or as defined in subsection 1(1) of the Environmental Assessment Act, as the case may be.

"Project administration team"

means a team made up of senior representatives of Canada and Yukon, with an environmental assessment responsibility, with respect to a project and in the case of a federal comprehensive study, includes a representative of the Canadian Environmental Assessment Agency.

"Responsible authority"

has the same meaning as in subsection 2(1) of the Canadian Environmental Assessment Act or as in subsection 1(1) in the Environmental Assessment Act, as the case may be.

Objectives of the Agreement

1. The objectives of this Agreement are to:
   1. foster cooperation between Canada and Yukon concerning the environmental assessment of proposed projects;
   2. achieve greater efficiency and the most effective use of public and private resources where environmental assessment processes, involving both Parties, are required by law; and
   3. establish accountability and predictability by delineating the roles and responsibilities of the Canada and Yukon.

Interpretation

1. This Agreement is entered into in support of the spirit and intent of the Sub-agreement and the Accord.
2. This Agreement shall be interpreted in a manner consistent with federal and territorial legal requirements, including but not limited to legislative requirements.
3. The right of either Party to carry out its legal responsibilities and obligations is recognized and this Agreement creates no legal obligations on the Parties.
4. This Agreement does not, in any way, affect or limit the jurisdiction or any rights, powers, privileges, prerogatives or immunities of Canada or Yukon.

Implementing Offices

1. Each Party will designate an implementing office to be responsible for the implementation and administration of this Agreement. The implementing office's responsibilities shall include:
   1. coordinating, as needed, administrative matters pertaining to this Agreement;
   2. facilitating consultation and cooperation between the Parties in relation to projects under environmental assessment review;
   3. providing information about their respective environmental assessment processes, policies, and procedures;
   4. coordinating and facilitating federal-territorial contact and communication on general environmental assessment matters with potential proponents, other government departments and agencies, the public and First Nations communities;
   5. developing joint operational guidelines, as needed, for matters pertaining to this Agreement; and
   6. keeping a directory of the names of those who have been assigned, by each Party, to assist in the administration or review of a cooperative environmental assessment, and making this information available on request.
2. Yukon's implementing office will be the Development Assessment Unit, Executive Council Office in Whitehorse.
3. Canada's implementing office will be the Canadian Environmental Assessment Agency office in Vancouver.
4. The implementing offices will jointly implement and administer this Agreement. They will consult as required to monitor the efficiency and effectiveness of the Agreement, and to review comments on the operation of the Agreement that may be received from time to time and regularly discuss the implementation of the Agreement.
5. The implementing offices shall endeavor to agree on the interpretation and application of this Agreement and will make efforts, through cooperation and consultation, to resolve disputes.
6. The implementing offices will not be responsible for conducting cooperative environmental assessments of individual projects carried out under this Agreement. This responsibility will rest with the federal and territorial responsible authorities.

Preliminary Consultations

1. The Parties will advise proponents about the potential for a cooperative environmental assessment at the earliest opportunity.
2. Where a Party learns of a prospective project, that might be subject to a cooperative environmental assessment, that Party will provide information on the project to the other Party's implementing office except where other procedures, for such notification, are in place and have been agreed upon by the Parties.
3. The Party receiving information provided as referred to in clause 13 of this Agreement will identify, in a timely manner, the information that will likely be needed by that Party to determine its environmental assessment responsibilities and the extent to which that Party may wish to participate in further consultations with the proponent.
4. The Parties will consult and work with each other and proponents, as early as possible to ensure that the preliminary information needed, to identify a Parties' environmental assessment responsibilities, is addressed in the development of any subsequent submission.
5. Each Party will include the other Party's information needs in the advice that it provides to proponents regarding any subsequent submission.
6. Where Canada intends to develop a model class screening report pursuant to the Canadian Environmental Assessment Act, and that the result will affect subsequent projects in Yukon, Canada will notify Yukon early in the process of developing the report and will provide Yukon with an opportunity to participate in the process of developing the report.
7. Where Yukon intends to develop a model class screening report, pursuant to the Environmental Assessment Act, Yukon will notify Canada early in the process of developing the report and will provide Canada with an opportunity to participate in the process of developing the report.

Notification and Determination of Parties Participating in an Environmental Assessment

Sharing Information

1. The Parties shall notify each other about projects that will potentially be subject to their respective environmental assessment processes, in a manner that ensures timely disclosure and access to relevant information about the projects.
2. For projects in Yukon, subject to the Environmental Assessment Act that are also projects as defined in subsection 2(1) of the Canadian Environmental Assessment Act, the territorial responsible authority will inform Yukon's implementing office, and that office will ensure that any project description documentation is provided to Canada's implementing office at the earliest possible opportunity.
3. For projects in Yukon, subject to the Canadian Environmental Assessment Act that are also projects as defined in subsection 1(1) of the Environmental Assessment Act, the federal responsible authority will inform Canada's implementing office, and that office will ensure that any project description documentation is provided to Yukon's implementing office at the earliest possible opportunity.
4. The Parties may agree, in writing, that the notification requirements referred to in clauses 20 and 21, are not required for certain types of projects or categories of projects.

Determining Environmental Assessment Responsibilities

1. The Parties agree to determine, as soon as is practicable and within any time frames that may be established in relevant legislation or policy, whether they have an environmental assessment responsibility in relation to the project.

Giving Notice About Environmental Assessment Responsibilities

1. The Parties will notify each other of their respective determinations, as soon as possible, after determining whether they have or may have an environmental assessment responsibility for a project.
2. If either Party believes that it has an environmental assessment responsibility, but the project proposal or description lacks sufficient information to make a final determination, that Party will:
   1. document the additional information required;
   2. provide this documentation to the other Party to ensure that the information needed, in order to make a determination, is obtained; and
   3. participate in the environmental assessment in accordance with (a) and (b) above, until it has made a determination respecting its environmental assessment responsibilities.

Cooperative Environmental Assessment

1. Where both Parties have an environmental assessment responsibility for a proposed project, a cooperative environmental assessment will be undertaken.
2. The cooperative environmental assessment will be administered by the Lead Party in a manner that enables both Parties to meet their legal and technical requirements, and that ensures that the cooperative environmental assessment:
   1. generates the type and quality of information required to meet the legal environmental assessment requirements of each Party; and
   2. provides findings on the environmental effects of the proposed project required for decision making by the respective Parties.
3. The Parties shall endeavor to agree on the interpretation and application of this Agreement and will make every effort, through implementation, planning, cooperation and consultation to resolve disputes. On an individual assessment basis, this function will be the role of the project administration team.
4. Where, despite the best efforts of the project administration team, a Party concludes that one or more of their legal information or process requirements is not being met, that Party will document its requirements in relation to its legal responsibilities, provide this documentation to the other Party and declare its intention to collect this information independently. While in the process of independently collecting the information, that Party will continue to participate in the cooperative environmental assessment. If the additional information collected is available prior to the conclusion of the cooperative environmental assessment, it will be integrated into the cooperative environmental assessment decision making; otherwise, the Party that collected the information will use it solely for its decision making.

Single Contacts

1. Each Party will identify a single contact person, capable of fulfilling the responsibilities set out in clause 31 of this Agreement, for the cooperative environmental assessment or phases of the assessment and will communicate this promptly to the other Party.
   1. Yukon's contact will be Yukon's implementing office, until such time, as a lead territorial responsible authority has been identified. When identified, the responsible authority shall designate a contact person who will be the point of contact for Canada for subsequent stages of the cooperative environmental assessment; and
   2. Canada's contact will be Canada's implementing office, until such time, as a lead federal responsible authority has been identified. When identified, the responsible authority shall designate a contact person who will be the point of contact for Yukon for subsequent stages of the cooperative environmental assessment.
2. Each Party's contact will:
   1. coordinate that Party's participation in the cooperative environmental assessment;
   2. work with the other contact to resolve process and content issues that may arise during the cooperative environmental assessment;
   3. ensure effective consultation with the other Party, the proponent and the public on matters pertaining to the cooperative environmental assessment; and
   4. endeavor to ensure that the Party meets any timelines established for the cooperative environmental assessment.

Determining Lead Party

1. The Lead Party, for the purposes of the cooperative environmental assessment, will generally be determined as follows:
   1. Canada will be the Lead Party for projects proposed to occur on federal lands, as defined in the Canadian Environmental Assessment Act, where federal approvals/authorizations are required to enable the project to be carried out in whole or part;
   2. Yukon will be the Lead Party for projects proposed to occur on lands within its territorial boundary, not covered under clause 32 (a) of this Agreement, where territorial approvals/authorizations are required to enable the project to be carried out in whole or part ; and
   3. for any project not covered under clause 32(a) or 32(b) of this Agreement and for which a cooperative environmental assessment is undertaken, the Lead Party will be determined by mutual agreement of the Parties, taking into account the criteria in clause 34 of this Agreement.
2. If a Party believes that it would be in the best interest of a cooperative environmental assessment to vary the lead from the arrangements described in clause 32 of this Agreement, that Party shall notify the other Party. A decision to vary the lead must be agreed to by both Parties.
3. In the notice referred to in clause 33 of this Agreement, the notifying Party will provide its rationale for suggesting a variance based on an evaluation of any of the following criteria:
   1. scale, scope, and nature of the environmental assessment;
   2. capacity to administer the assessment including available resources;
   3. physical proximity of the government's infrastructure;
   4. effectiveness and efficiency;
   5. access to scientific and technical expertise;
   6. ability to address client or local needs;
   7. extra-territorial, provincial, inter-territorial, or international considerations; or
   8. existing regulatory regime, including the legal requirements of quasi-judicial tribunals; and
   9. any other criteria deemed relevant by the notifying Party.

Project Administration Team

1. The Lead Party will, unless otherwise, agreed for certain projects or classes of projects, establish and chair a project administration team.
2. As required, the project administration team will consult with a technical advisory committee, made up of advisors from the respective administrations, to provide advice to the project administration team in order to meet its responsibilities.
3. The project administration team will be responsible for managing the cooperative environmental assessment, by:
   1. coordinating public participation in the cooperative environmental assessment pursuant to clause 38 of this Agreement;
   2. coordinating consultation between the Parties, the proponent and the public on matters pertaining to the cooperative environmental assessment;
   3. establishing a mutually agreeable schedule for the cooperative environmental assessment pursuant to clauses 40 and 41 of this Agreement;
   4. setting the information requirements for assessing the environmental effects of the project pursuant to clauses 43, 44 and 45 of this Agreement;
   5. ensuring that the information, pertaining to the environmental effects of the project, is analyzed pursuant to clause 46 of this Agreement;
   6. assessing the completeness and adequacy of the environmental assessment information and discussing the findings of the cooperative environmental assessment report, and any proposed recommendations with decision makers; and
   7. coordinating, to the extent possible, the timing of environmental assessment decisions and the announcement of such decisions, pursuant to clauses 54, 55 and 56 of this Agreement.

Determination of the Need for Public Participation

1. The Parties will coordinate the timing of their determination for the need for public participation. Each Party will determine its need for public participation in as timely a way as possible for the cooperative environmental assessment and will communicate this need to the other Party. If both Parties determine that public participation is appropriate, they will consult on the establishment of a joint process.
2. Detailed provisions for the establishment and conduct of the joint review panels are provided in clauses 47 to 53.

Cooperative Environmental Assessment Schedule

1. Once the project administration team has established a schedule for the cooperative environmental assessment, the Lead Party will provide the proponent with a copy of this schedule.
2. If a schedule must be altered, the Lead Party will consult and reach agreement about the change(s) with the project administration team and discuss the change(s) with the proponent.
3. Where an amended schedule would affect the opportunity for public involvement, the public will be advised by the Lead Party of the revisions to the schedule, along with an explanation for the changes.

Setting the Environmental Assessment Information Requirements

1. Where further environmental assessment information is needed to complete the cooperative environmental assessment, the project administration team will consolidate the information requirements of both Parties into a single request for information. Requests for information are intended to guide the proponent in preparing the environmental assessment information for the cooperative environmental assessment.
2. For the purposes of developing the environmental assessment information requirements, the definitions of "environment" and "environmental effects" will be adopted from both the Environmental Assessment Act and the Canadian Environmental Assessment Act to ensure the requirements of both Parties are met.
3. Once the request for environmental assessment information has been agreed to by the project administration team, the Lead Party will issue the request to the proponent.

Determining Completeness of the Environmental Assessment Information

1. The Parties, through the project administration team, will review the environmental assessment information submitted by the proponent to determine its completeness and adequacy. In this regard:
   1. the Parties will each identify whether additional information is needed to meet their respective decision-making needs;
   2. if information deficiencies are identified by the Parties that would prevent the cooperative environmental assessment from proceeding, the Lead Party will consolidate the deficiencies into one document; and
   3. the Lead Party will issue the agreed upon consolidated deficiency document to the proponent.

Joint Review Panels

1. For a cooperative environmental assessment, when Yukon or Canada has determined that the project should be referred to a review panel pursuant to the Environmental Assessment Act or the Canadian Environmental Assessment Act, as the case may be, it shall provide immediate notice of that decision to the other Party and consult on the possible establishment of a joint review panel for the project.
2. As early as possible in the cooperative environmental assessment of a project for which a joint review panel will be established, the Parties will enter into a project specific agreement to establish the joint review panel and set terms of reference for its operation including membership, cost sharing arrangements, provisions for cost recovery if applicable, assistance to be provided to participants in the hearing process if applicable, participation by potentially affected First Nations, and any other matter as directed by the requirements of federal and territorial legislation and this Agreement.
3. Where a joint review panel secretariat is established, the panel secretariat will be Canada's and Yukon's single contact for the panel.
4. All documents produced by a joint review panel, including its final report, will take account of and reflect the views of all the members of the panel.
5. The joint review panel's final report shall be conveyed to the Parties as recommendations only.
6. In considering the recommendations of a joint review panel, Canada and Yukon agree not to exercise any power, duty or function in respect of the project prior to the Parties discussing the panel's findings and recommendations.
7. Any decisions made by Canada or the Yukon respecting participant or intervenor funding will, to the extent practicable, consider the views of the other Party respecting such funding.

Recommendations to Decision Makers and Coordination of Decisions

1. Each Party, having an environmental assessment responsibility, will use the information generated by the cooperative environmental assessment for the purposes of their respective decision making, provided that each Party is of the opinion that the information generated in the process meets the requirements of its environmental assessment legislation.
2. Upon completion of a cooperative environmental assessment, each Party will notify the other of the timing and content of the responsible authorities' decisions and provide an opportunity to coordinate the announcement of such decisions.
3. To the extent possible, neither Party will communicate its decision directly to the proponent or the public without prior notification of the other Party.

Follow-up

1. Where a cooperative environmental assessment results in the approval of a project, the Parties agree to communicate and to coordinate any follow-up responsibilities of Canada and Yukon, where the Parties agree that it would be mutually advantageous to do so.

Aboriginal Considerations

1. The Parties recognize the protection provided for the Aboriginal and treaty rights of the Aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
2. Where a project subject to a cooperative environmental assessment has the potential to cause adverse environmental effects, the Parties will notify any potentially affected First Nations, so they may participate in the cooperative environmental assessment, as provided for by the Canadian Environmental Assessment Act, the Environmental Assessment Act and the regulations made pursuant to those Acts, or in accordance with Interim Measures pursuant to Chapter 12.3.6 of the Umbrella Final Agreement.

Accommodating Interest

1. Where a Party identifies its interest in a project to the Party that has an environmental assessment responsibility for the project, the Party, with the responsibility, will provide opportunities for the Party with an interest to provide input, as appropriate, on the project, including the review of the environmental assessment information related to the project.
2. Nothing in this Agreement is intended to limit the opportunities established in the Canadian Environmental Assessment Act or the Environmental Assessment Act for either Party to access information or provide input on a project.
3. Where one Party has an environmental assessment responsibility for a project, the other Party agrees to provide expertise to the Party with the environmental assessment responsibility, subject to resource limitations and receiving a written request for such information. The expertise provided may include reviewing the environmental assessment information.

Accommodating Transboundary Concerns

1. Where Canada has obligations pursuant to an international agreement concerning the environmental assessment of a project subject to a cooperative environmental assessment, Canada will notify and discuss its obligations with Yukon to ensure that the obligations associated with the cooperative environmental assessment and the international agreements are met.
2. For any project in Yukon, which is subject to a cooperative environmental assessment and that has the potential to cause significant adverse environmental effects in another province or territory in Canada, the potentially affected province or territory shall be notified and invited by the Lead Party to take part in the cooperative environmental assessment of the project.
3. Where a project occurring outside Yukon is subject to an environmental assessment under the Canadian Environmental Assessment Act and the project may potentially cause significant adverse environmental effects in Yukon, Yukon will be invited by Canada to take part in the environmental assessment of that project. This requirement will not apply where Yukon has concluded an agreement with another province or territory which will result in notification to Yukon about the project, and an opportunity for them to participate in the environmental assessment prior to its completion.

Revision and Duration of Agreement

1. The Parties agree to undertake periodic reviews of the implementation of this Agreement, including the effectiveness in fostering cooperation between the Parties and in meeting the objectives of this Agreement.
2. This Agreement may be revised, in writing, at any time by mutual consent.
3. This Agreement will be in force, until such time, as legislation enacted pursuant to chapter 12 of the Umbrella Final Agreement is fully implemented and all cooperative assessments, under this agreement, have been completed. If such legislation has not been implemented within five years from the date of the execution of this Agreement, then this Agreement will either be renewed by mutual agreement or terminated.
4. Prior to the expiration or renewal of the Agreement, the Parties will evaluate the Agreement and their performance in relation to it. The evaluation will include opportunities for public consultation as required.
5. Following consultation between the Parties, this Agreement may be terminated by either Party, forty-five days after written notice is provided to the other Party. In the event of termination, the Parties will establish transitional arrangements for projects already subject to a cooperative environmental assessment.

Signatures

This Agreement is entered into pursuant to section 58 of the Canadian Environmental Assessment Act and section 46 of the Environmental Assessment Act.
(Original signed on January 13, 2004)

Original signed by:

_________________________
The Honourable David Anderson
Minister of the Environment
Government of Canada

_________________________
The Honourable Dennis Fentie
Premier of Yukon