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:

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:

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:

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:

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:

2.5. Decision-Making Phase

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

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:

3.3. Impact Statement Phase

Key activities that the CER will participate in include:

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:

3.5. Decision-Making Phase

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

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:

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.

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