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

Annex 6 — Development of Conditions for Integrated Impact Assessments

General

This Annex is governed by the understandings as described in the 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.

Purpose

This Annex sets out the process for the development of conditions for integrated impact assessments for designated projects that include physical activities regulated under the Canadian Energy Regulator Act (CERA).

Legislative Provisions

Subsection 65(1) of the Impact Assessment Act (IAA) states the Minister of the Environment and Climate Change (the Minister) must issue a Decision Statement to the proponent informing the proponent of the decision made under the IAA in relation to the designated project. The Decision Statement includes any conditions with which the proponent must comply.

Subsection 64(1) of the IAA requires the Minister to establish any condition he or she considers appropriate in relation to the adverse effects within federal jurisdiction with which the proponent must comply.

Subsection 64(2) of the IAA requires the Minister to establish any condition he or she considers appropriate that is directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority that would permit a designated project to be carried out, in whole or in part of that designated project in relation to the adverse direct or indirect incidental effects with which the proponent must comply.

Under paragraph 64(4)(a) of the IAA, the conditions established by the Minister must include the implementation of the mitigation measures that the Governor in Council takes into account in making a decision under section 62, other than those the implementation of which the Minister is satisfied will be ensured by the CER.

Subsection 67(2) of the IAA requires that a Decision Statement issued in relation to a designated project under the CERA is considered to be part of the certificate or other instrument given under the CERA for the designated project.

Paragraph 183(1)(b) of the CERA (when read together with section 185 of the CERA) requires the report of the integrated review panel to include all the conditions that it considers necessary or in the public interest to which the certificate would be subject if the Governor in Council were to direct that the certificate be issued.

Subsection 79(2) of the Species at Risk Act requires that the adverse effects of a project on a listed wildlife species and its critical habitat be identified, and, if the project is carried out, requires that measures be taken to avoid or lessen the effects and to monitor them. The measures must be taken in a way that is consistent with any applicable recovery strategy and action plans.

Process for Development of Conditions

The Agency will, in consultation with the CER, provide guidance to the integrated review panel on the process for developing conditions relating to the integrated impact assessment. In addition to any guidance that may be provided by the Agency on the record of the review, the secretariat, including staff members from the CER, will also support the v in the development of potential conditions.

In order to fulfill the requirements of the CERA, the integrated review panel will identify the potential mitigation measures and develop potential conditions during the integrated impact assessment process, and make draft conditions available for comment prior to public hearings. To the extent possible, input from the Agency, federal authorities, other government agencies, the proponent, the public and Indigenous groups on the draft conditions will be brought forward through the integrated review panel process and will be on the record. The integrated review panel will identify in its report, those mitigation measures, including those that are incorporated into draft conditions, that it considers the responsibility of the CER to ensure implementation of by the proponent.

The integrated review panel will submit its report to the Minister and the Minister of Natural Resources Canada (NRCan) pursuant to subsection 51(1) of the IAA and subsection 183(1) and section 185 of the CERA. The report will also contain the integrated review panel’s recommendations on potential conditions to be included in the Decision Statement under the IAA. The report would also contain the conclusions or recommendations necessary for a certificate to be issued under the CERA in relation to the designated project, including those conditions that it considers necessary or in the public interest to which the certificate would be subject if the Governor in Council were to direct that the certificate be issued.

Should the Agency believe additional potential conditions are required relating to the impact assessment or as a result of consultations with Indigenous groups, beyond those included in the Integrated Review Panel Report, it will consult with the CER regarding the development of any such potential conditions.

Any conditions established by the Minister with respect to the integrated impact assessment that are included in the Decision Statement are considered to be part of the Certificate of Public Necessity and Convenience issued under the CERA.

It is anticipated that any amendments to conditions in a certificate or other authorization issued by the CER following an integrated impact assessment by an integrated review panel, will be assessed for approval by the CER, as the lifecycle regulator.

The CER will consult with the Agency prior to amending conditions that could result in significant changes to the scope and intent of the conditions contained within a certificate or other authorization issued by the CER, following an integrated impact assessment by an integrated review panel. At the request of the Agency, the CER will provide any documentation relating to condition compliance and lifecycle oversight.

The enforcement of any conditions established by the Minister under section 64 of the IAA shall be undertaken by the CER.

Point of Contact

The CER and the Agency will each identify the point of contact to coordinate the process for development of conditions.

The CER point of contact is the hearing manager. The Agency’s points of contact are the Manager, Decision Statements and the panel manager for the project. The participants will ensure that up-to-date contact information for the respective points of contact is made available to each other.