Annex for Integrated Impact Assessments
Between
the Impact Assessment Agency of Canada
– and –
the Canadian Energy Regulator

Annex 3 — Roles and Responsibilities for Crown Consultation in Integrated Impact Assessment Processes

1. General

This Annex is governed by the understandings as described in the interim Memorandum of Understanding (MOU) between the Impact Assessment Agency of Canada (the Agency) and the Canadian Energy Regulator (CER). Pursuant to the MOU and under the terms of this Annex, the Agency and the CER (each a “party” or jointly “the parties”) agree to respect this Annex. This Annex is intended to be read in conjunction with the MOU.

1.1. Definitions

In this Annex:

“Indigenous peoples” has the same meaning as “Aboriginal peoples of Canada” as defined by s. 35 of the Constitution Act, 1982.

“CER” refers to CER staff and “the Regulator” refers to the administrative tribunal.

1.2. Purpose

The purpose of this Annex is to establish an understanding between the parties in relation to each party’s role with respect to the Crown’s duty to consult and, as necessary, accommodate Indigenous peoples in relation to designated projects subject to an integrated review panel process under the IAA and the CERA.

1.3. Roles of other Participants

The roles of other key participants with respect to Crown consultation activities within an impact assessment process, including federal authorities, the project proponent and Indigenous peoples, will depend on various factors. These roles and participation opportunities will be elaborated during the Planning phase of integrated impact assessments, including through the Indigenous Engagement and Partnership Plan and group-specific consultation plans, as appropriate.

The role of the integrated review panel with respect to assessing the potential impacts of a designated project on Aboriginal and/or Treaty rights will be outlined in the Terms of Reference for the integrated review panel (see Annex 4: “Generic Terms of Reference for an Integrated Review Panel”).

2. Impact Assessment Agency of Canada’s Role in Crown Consultation

2.1. Overview

The Agency will lead Crown consultation activities with Indigenous peoples during integrated impact assessments and will coordinate a whole of government approach to integrating Crown consultation into the integrated impact assessment process. The Agency will:

• lead a Crown consultation team, including the CER, throughout the integrated impact assessment pursuant to the Agency’s suite of policies, guidance and tools for Crown consultation and Indigenous engagement, and coordinate the participation of the federal authorities and other jurisdictions in consultation activities with potentially affected Indigenous groups, as required, to build relationships and discuss issues;
• serve as primary point of contact in respect of the consultation process, coordinate communication and consultation between potentially affected Indigenous groups and other Crown participants, and facilitate communication between Indigenous groups and the proponent as appropriate;
• maintain and share the Crown record of consultations with the CER, federal authorities and the panel, as appropriate; and
• transfer the Crown record of consultation to the CER and federal authorities following the issuance of the impact assessment Decision Statement.

2.2. Planning Phase

The Agency, in collaboration with the CER, will provide guidance to proponents on early engagement with potentially affected Indigenous groups and Indigenous jurisdictions, leading up to the submission of an Initial Project Description to the Agency.

Following submission of an Initial Project Description, the Agency will lead the collaborative planning of an appropriately scaled, resourced and flexible Crown consultation process with respect to the integrated impact assessment involving all relevant federal authorities. A Crown consultation team will be established for the integrated impact assessment comprised of staff from the Agency, CER and appropriate federal authorities.

Key activities that will be undertaken in collaboration with the CER include:

• conducting preliminary research and analysis required to inform whether and to what extent, a legal duty to consult may apply in respect of contemplated decision-making under the IAA and CERA, based on information provided by the proponent in its Initial Project Description;
• working with the CER, proponent, federal and provincial authorities and other jurisdictions, as appropriate, to identify Indigenous groups for consultation that may be affected by a project (breadth of consultation assessment);
• to the extent information is available, conducting a preliminary assessment of the information supporting the existence of Aboriginal and/or Treaty rights (i.e., nature, extent and content of the rights) including how the rights are exercised by the Indigenous group;
• to the extent information is available, conducting a preliminary assessment of potential adverse impacts of the designated project on Aboriginal and/or Treaty rights;
• applying these preliminary assessments to inform the depth of the consultation process identified as appropriate for each Indigenous group;
• identify any agreements or annexes entered into by the Crown and Indigenous groups that must be respected and followed;
• assembling background information on Indigenous group participants and current Crown-Indigenous relationships to enable all consultation team members to gain familiarity with traditions, history or unique cultural features of each community they will be consulting with;
• providing funding opportunities to Indigenous groups to support their early participation in the Planning phase;
• initiating and maintaining the record of Crown consultation; and
• identifying and tracking issues raised by Indigenous groups in comments and feedback received on the Initial Project Description.

If an integrated impact assessment is required, the Agency will work collaboratively with Indigenous groups, the CER, federal authorities and other jurisdictions to develop and implement the Indigenous Engagement and Partnership Plan.

The Agency, in collaboration with the CER, will seek comments and input from Indigenous groups on the development of all relevant planning documents, in particular, the Tailored Impact Statement Guidelines (the TIS Guidelines) and any group-specific consultation plans.

At the end of the Planning phase, the Agency will, in collaboration with the CER:

• update as necessary the preliminary breadth and depth of consultation assessment, including the initial assessment of potential adverse impacts of the designated project on Aboriginal and/or Treaty rights;
• share with Indigenous groups the Notice of Commencement and the finalized plans developed in the Planning phase; and
• invite Indigenous groups to submit applications for participant funding for the subsequent phases of the impact assessment, and share next steps in the process including referral of the impact assesment to an integrated review panel.

At the end of the Planning phase, the Agency will collaborate with the CER and participating federal authorities in considering the adequacy of the impact assessment and consultation approach for addressing Indigenous group interests and concerns with respect to the designated project. This procedural step will assist in identifying a potential accommodation mandate for the Crown consultation team and/or what authority may be needed by the integrated review panel pursuant to its Terms of Reference in order to address Indigenous group interests and concerns. The Indigenous Engagement and Partnership Plan will also help inform the overall design of the impact assessment process including management of timelines and key process steps required to implement the Indigenous Engagement and Partnership Plan and a meaningful consultation process.

2.3. Impact Statement Phase

Key activities that will be undertaken in collaboration with the CER include:

• the Agency will invite Indigenous groups to provide comments on the draft panel Terms of Reference, suggest individuals for consideration for appointment to the integrated review panel, and solicit feedback on requirements for Indigenous language translation at the public hearing;
• the Agency will notify Indigenous groups of funding to support their participation in the subsequent phases of the impact assessment process, consistent with the Indigenous Engagement and Partnership Plan and any group-specific consultation plans;
• the Agency, along with the Crown consultation team, will identify and track potential mitigation, complementary measures and other accommodation measures, based on preliminary review of the proponent’s Impact Statement and issues raised by Indigenous groups to that point in the process;
• the Agency will maintain an ongoing two-way dialogue throughout the Impact Statement phase and work with Indigenous groups to support the implementation of the Indigenous Engagement and Partnership Plan and any group-specific consultation plans, as appropriate;
• the Agency or review panel will invite Indigenous groups to comment on the proponent’s Impact Statement to help inform the decision on whether the information or studies required have been provided by the proponent; and
• at the end of the Impact Statement phase, the Agency will communicate any required updates to Indigenous groups, including implementation of the Indigenous Engagement and Partnership Plan, any group-specific consultation plans, incorporation of Indigenous knowledge, and any required updates to the Crown’s preliminary assessment of potential adverse impacts on Aboriginal and/or Treaty rights (based on information gathered during the Impact Statement phase).

2.4. Impact Assessment Phase

Following the establishment of the integrated review panel, key activities that will be undertaken in collaboration with the CER include:

• the Agency, along with the Crown consultation team, will maintain an ongoing two-way dialogue and work with Indigenous groups to support the implementation of the Indigenous Engagement and Partnership Plan and any group-specific consultation plans, as appropriate;
• the Agency will notify Indigenous groups of the appointment of the integrated review panel members and share the final Terms of Reference for the integrated review panel;
• the Agency will encourage Indigenous groups to participate in the integrated review panel process and provide notification of public hearing dates;
• the Agency, along with the Crown consultation team, will monitor the record of the integrated review to maintain awareness of issues raised by Indigenous groups, and proposals related to avoiding, mitigating or otherwise accommodating potential adverse impacts on the exercise of Aboriginal and/or Treaty rights;
• the Agency, as Crown consultation lead, will participate in the public hearing by providing input to the integrated review panel on behalf of the Crown consultation team, as appropriate or as requested by the integrated review panel;
• the Agency will track the development of and consultation by the integrated review panel on draft potential conditions in respect of the designated project;
• the Agency, on behalf of the Crown consultation team, will respond to information requests within the integrated review panel process and to issues raised by Indigenous groups outside the impact assessment in respect of consultation-related matters;
• after the close of the panel’s record of the review, the Agency, along with the Crown consultation team, will:
  • lead a series of meetings with Indigenous groups, as required, to conduct two-way dialogue on potentially outstanding issues and any proposals to address these outstanding issues; and
  • coordinate a whole-of-government gap analysis of mitigation measures in the context of potential impacts on the exercise of Aboriginal and/or Treaty rights, and develop Crown responses to issues raised that may fall outside of the panel’s Terms of Reference;
• the Agency will notify Indigenous groups when the report of the integrated review panel is released and plans for consultation following the close of the panel’s record of review;
• as appropriate, following public release of the integrated review panel report, the Agency, along with the Crown consultation team, will:
  • consult on the Integrated Review Panel Report;
  • consult on any additional recommended potential conditions that may be required for the Minister of Environment and Climate Change’s impact assessment Decision Statement and the regulator’s potential certificate that were not included in the Integrated Review Panel Report;
  • consult on any proposals for potential complementary measures or other accommodation measures in respect of potential adverse impacts on the exercise of Aboriginal and/or Treaty rights; and
  • develop and consult on a draft Consultation and Accommodation Report; and
• using the draft Consultation and Accommodation Report as the primary vehicle, the Agency, along with the Crown consultation team, will communicate any required updates related to the implementation of the Indigenous Engagement and Partnership Plan, any group-specific consultation plans, and the Crown’s detailed assessment of potential adverse impacts on the exercise of Aboriginal and/or Treaty rights (based on information gathered during the Impact Assessment phase).

2.5. Decision-Making Phase

Key activities that will be undertaken in collaboration with the CER include:

• as required, the Agency and Crown consultation team will continue to consult Indigenous groups on the panel report, any additional recommended potential conditions, proposals for potential complementary measures or other accommodation in respect of potential impacts on the exercise of Aboriginal and/or Treaty rights, and the draft Consultation and Accommodation Report;
• the Agency will coordinate the evaluation of the adequacy of the Crown’s consultation efforts to date both procedurally and substantively, with input from the CER, participating federal authorities, and as required, the Department of Justice;
• the Agency will share final documents with Indigenous groups as appropriate, and coordinate the response to any outstanding issues not already addressed in the Integrated Review Panel Report and Consultation and Accommodation Report;
• the Agency will submit the Consultation and Accommodation Report to the Minister of Environment and Climate Change (the Minister) and invite Indigenous groups to submit their own independent submissions directly to the Minister and/or Governor-in-Council to help inform federal decision-making in respect of the designated project;
• the Agency will coordinate consultation-related input and advice to the Minister and Governor-in-Council, including the outcomes of the Crown’s assessment of impacts on the rights of Indigenous peoples, a summary of the Consultation and Accommodation Report, consultation adequacy and any recommendations for complementary measures or other accommodations that may be required to fulfill the duty to consult, enhance relationships and foster reconciliation; and
• the Agency will continue to provide procedural updates to Indigenous groups about the Decision-Making and potential Post Decision phases until a decision is announced, including the transfer of Crown consultation responsibilities to the CER, as appropriate.

2.6. Follow-Up, Monitoring and Compliance & Enforcement Phase

The Agency will transfer the lead role for Crown consultation to the CER, with relationship management efforts to ensure a smooth transition including meetings as appropriate to facilitate ongoing Crown-Indigenous relationships with appropriate Crown participants for the Regulatory phase. The Agency will also ensure the Crown record of consultation is made available to the CER and federal authorities for their ongoing use .

The Agency, along with the Crown consultation team, will discuss and document any lessons learned to support continuous improvement.

3. Canadian Energy Regulator’s Role in Crown Consultation

3.1. Overview

The CER will serve as a technical expert federal authority as part of the Crown consultation team throughout the integrated impact assessment and coordinate participation of relevant staff from the CER in consultations with Indigenous groups, as appropriate, to ensure that the regulator, as an Agent of the Crown, meets its duty to consult and, as appropriate, accommodate in relation to any decisions as part of the integrated impact assessment process.

The CER will share with the Agency the applicable features or outcomes of the CER’s Enhanced Indigenous Engagement procedures as appropriate, to ensure alignment of any early engagement activities conducted by the Agency or the CER including the potential for joint Agency-CER meetings with Indigenous groups in respect of a potential designated project.

3.2. Planning Phase

The CER will assist the Agency in providing guidance to proponents on early engagement with potentially affected Indigenous groups, and Indigenous jurisdictions, leading up to the submission of an Initial Project Description to the Agency.

Following submission of an Initial Project Description, the CER will participate in the collaborative planning of an appropriately scaled, resourced and flexible Crown consultation process with respect to the integrated impact assessment. Key activities include:

• assigning CER staff to the Crown consultation team for the integrated impact assessment;
• contributing to preliminary research and analysis led by the Agency to inform whether and to what extent, a legal duty to consult may apply in respect of contemplated decision-making under the IAA and CERA based on information provided by the proponent in its initial Project Description;
• working with the Agency, proponent, federal and provincial authorities and other jurisdictions as appropriate to identify Indigenous groups for consultation that may be affected by a project (breadth of consultation assessment);
• contributing to a preliminary assessment of the information supporting the existence of Aboriginal or treaty rights (i.e., nature, extent and content of the rights) that may be impacted by the project, including how the rights are exercised by the Indigenous group;
• contributing to a preliminary assessment of potential adverse impacts of the designated project on Aboriginal and/or Treaty rights;
• contributing to the application of these preliminary assessments to inform the depth of the consultation process identified as appropriate for each Indigenous group;
• identifying any agreements or annexes entered into by the Government of Canada or the CER and Indigenous groups that must be respected and followed;
• reviewing background information on Indigenous group participants and current Crown-Indigenous relationships to gain familiarity with traditions, history or unique cultural features of each community the Crown will be consulting with;
• assisting in identifying key issues raised by Indigenous groups in comments and feedback received during the Planning phase;
• contributing to the record of Crown consultation as appropriate by providing any details of CER interactions with Indigenous groups in respect of the designated project, when the Agency may not be a participant;
• If an integrated impact assessment is required, working collaboratively with the Agency, Indigenous groups, federal authorities and other jurisdictions to develop and implement the Indigenous Engagement and Partnership Plan and any group-specific consultation plans;
• participating as part of the Crown consultation team in all meetings with Indigenous groups to build relationships, discuss issues raised, and address issues and concerns raised regarding the CER’s regulatory process and life-cycle regulatory role; and
• review the proposed design of the subsequent phases of the integrated impact assessment process, including timelines and the roles and responsibilities of the CER.

3.3. Impact Statement Phase

Key activities that the CER will participate in include:

• the CER will assist the Agency in implementing relevant aspects of the Indigenous Engagement and Partnership Plan and group-specific consultation plans, including participation in all consultation meetings with Indigenous groups, identifying and tracking potential mitigation, complementary measures or other accommodation, based on preliminary review of the proponent’s Impact Statement;
• support the Agency in reviewing comments received on the draft Panel Terms of Reference from Indigenous groups, including suggestions of individuals for consideration for appointment to the integrated review panel, and feedback on requirements for Indigenous language translation at the public hearing; and
• support the Agency in reviewing comments on the proponent’s Impact Statement received from Indigenous groups to help inform the decision on whether the information or studies required have been provided by the proponent.

3.4. Impact Assessment Phase

The CER agrees to ensure the functional separation of the activities of the staff involved in the Crown consultation team from those of staff who are supporting the work of the integrated review panel as part of the secretariat so as to safeguard the independence and deliberations of the integrated review panel.

Following the establishment of the integrated review panel, the CER, as part of the Crown consultation team, will:

• monitor the record of the review to maintain awareness of issues raised by Indigenous groups and proposals related to avoiding or mitigating potential impacts on the exercise of Aboriginal and/or Treaty rights;
• support the Agency in responding to information requests within the integrated review panel process and to issues raised by Indigenous groups outside the integrated impact assessment in respect of consultation-related matters;
• participate, after the close of the record of the review, in a series of meetings with Indigenous groups, as required, to conduct two-way dialogue on potentially outstanding issues and any proposals for potential additional conditions that were not considered by the integrated review panel, and complementary measures or other accommodation based on the ongoing assessment of the adequacy of proposed mitigation measures to address potential impacts on the exercise of Aboriginal and/or Treaty rights; and
• following public release of the Integrated Review Panel Report:
  • consult on the Integrated Review Panel Report,
  • consult on any additional recommended potential conditions for the impact assessment Decision Statement and the regulator’s potential certificate that were not included in the Integrated Review Panel Report;
  • consult on any proposals for complementary measures or other accommodation in respect of potential adverse impacts on the exercise of Aboriginal and/or Treaty rights; and
  • consult on and assist in the development of a draft Crown Consultation and Accommodation Report.

3.5. Decision-Making Phase

Following the submission of the Integrated Review Panel Report, the CER, as part of the Crown consultation team, will:

• continue to consult Indigenous groups on the Integrated Review Panel Report, any additional recommended potential conditions not included in the Integrated Review Panel Report, proposals for complementary measures or other accommodation in respect of potential impacts on the exercise of Aboriginal and/or Treaty rights, and the draft Crown Consultation and Accommodation Report;
• participate in the Agency-led evaluation of the adequacy of the Crown’s consultation efforts to date, including specific consideration of contemplated action by the integrated review panel as decision-maker under the CERA;
• contribute to the development of responses to Indigenous groups for any outstanding issues not already addressed in the Integrated Review Panel Report and Crown Consultation and Accommodation Report, as well as to updating Indigenous groups on the potential next steps following issuance of the impact assessment Decision Statement; and
• contribute to advise the Minister and Governor-in-Council on consultation adequacy and any recommended measures or actions that may be required to fulfill the duty to consult, enhance relationships and foster reconciliation.

3.6. Follow-Up, Monitoring and Compliance & Enforcement Phase / Regulatory Phase

Following the issuance of a Decision Statement for a designated project, the Agency will share the Crown record of consultation with the CER and identify the CER as Crown consultation lead for the Regulatory phase, with relationship management efforts coordinated with the Agency and federal authorities to facilitate ongoing Crown/Regulator-Indigenous relationships.

The CER will also notify Indigenous groups of issuance of a Certificate of Public Convenience and Necessity pursuant to the CERA and the role of Indigenous groups in any next steps of the process.

As the lead for ongoing follow-up monitoring and compliance and enforcement activities, the CER will:

• monitor implementation of key mitigation measures, project conditions, including requirements for ongoing engagement between the project proponent and identified Indigenous groups and any complementary measures or other accommodation to validate Crown conclusions on potential impacts on rights;
• be responsive to issues raised by Indigenous groups and pursue ongoing engagement and collaboration opportunities, as appropriate; and
• contribute to the establishment of monitoring committees involving Indigenous groups, as appropriate;

As part of the Crown consultation team for the integrated impact assessment, the CER will contribute to the discussion and documentation of any lessons learned to support continuous improvement.

4. Point of Contact

The CER and the Agency will each identify the point of contact to coordinate Crown consultation activities.

The CER point of contact is the hearing manager. The Agency’s point of contact is the regional project manager or consultation lead, as appropriate, for the designated project. The parties will ensure that up-to-date contact information for the respective points of contact is made available to each other.