Annex to the Memorandum of Understanding
Between the
Impact Assessment Agency of Canada
and the
Canadian Nuclear Safety Commission

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

Whereas the Impact Assessment Agency of Canada (“the Agency”) and the Canadian Nuclear Safety Commission (“the CNSC”) — together, “the participants” — have entered into an MOU on cooperation and collaboration with respect to implementing integrated impact assessment processes under the Impact Assessment Act (the IAA) for designated projects regulated under the Nuclear Safety and Control Act (NSCA).

Therefore, the Agency and the CNSC will consult and work collaboratively, through efficient and effective cooperation, without unnecessary delays or duplication of effort, and in accordance with the provisions of the MOU and the procedures and guidance of this Annex with regard to Crown consultation.

1. Definitions

In this Annex:

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

2. Purpose

The purpose of this Annex is to outline the roles and responsibilities in relation to each participant’s role with respect to the Crown’s duty to consult and, as appropriate, accommodate Indigenous peoples in relation to designated projects subject to an integrated impact assessment process.

3. Roles of other Participants

The roles of other key participants with respect to Crown consultation activities within an integrated impact assessment process, including federal authorities, the project proponent and Indigenous peoples, will vary depending on various factors. These roles and participation opportunities will be elaborated during the Planning phase of an integrated impact assessment, including through the Indigenous Engagement and Partnership Plan (IEPP) 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 (refer to Annex 6).

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

4.1. 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 throughout the integrated impact assessment pursuant to the Agency’s and other relevant policies, guidance and tools for Crown consultation and Indigenous engagement, and coordinate the participation of the CNSC, federal authorities and other jurisdictions in consultation activities with potentially affected Indigenous groups;
• 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 CNSC, federal authorities and the Panel for their use; and
• transfer the Crown record of consultation to the CNSC and federal authorities following the issuance of the impact assessment Decision Statement.

4.2. Planning phase

The Agency, in collaboration with the CNSC, 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, CNSC and appropriate federal authorities.

Key activities that will be undertaken in collaboration with the CNSC 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 NSCA, based on information provided by the proponent in its initial Project Description;
• working with the 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);
• conducting a preliminary assessment of the nature, scope and content of Aboriginal and/or Treaty rights that may be exercised by Indigenous groups within the area potentially affected by the project, and a preliminary assessment of potential adverse impacts of the project on the identified 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 protocols 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 the Crown will be consulting with
• 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 CNSC, federal authorities and other jurisdictions to develop and implement the IEPP.

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

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

• 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 integrated impact assessment, and share next steps in the process including referral of the impact assessment to an Integrated Review Panel.

At the end of the Planning phase, the Agency will collaborate with the CNSC and participating federal authorities in considering the adequacy of the impact assessment and consultation approach for being able to address the interests and concerns raised by the identified Indigenous groups with respect to the designated project. This procedural step will assist in identifying a potential accommodation mandate for the Crown consultation team in order to address the interests and concerns of identified Indigenous groups. The IEPP will also help inform the overall design of the impact assessment process including management of timelines and key process steps required to implement the IEPP and a meaningful consultation process.

4.3. Impact Statement phase

Key activities that will be undertaken in collaboration with the CNSC 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 IEPP and any group-specific consultation plans;
• the Agency, along with the Crown consultation team, will identify and track potential mitigation measures and other accommodation measures based on a preliminary review of the proponent’s Impact Statement / Licence Application and issues raised by Indigenous groups to that point in the process;
• the Agency, along with the Crown consultation team, will maintain an ongoing two-way dialogue throughout the Impact Statement phase and work with Indigenous groups to support the implementation of the IEPP and any group-specific consultation plans, as appropriate;
• the Agency will invite Indigenous groups to comment on the proponent’s Impact Statement / Licence Application to help inform the decision on whether the information or studies required have been provided by the proponent;
• at the end of the Impact Statement phase, the Agency, in collaboration with the Crown consultation team, will communicate any required updates to Indigenous groups including implementation of the IEPP, 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); and
• the Agency will also begin to develop and consult on a draft Crown Consultation and Accommodation Report.

4.4. Impact Assessment phase

Following the establishment of the Integrated Review Panel, key activities that will be undertaken in collaboration with the CNSC 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 IEPP 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, along with the Crown consultation team, will participate in the public hearing by providing input to the Integrated Review Panel as appropriate or as requested by the Integrated Review Panel. Input to the Panel may include information on potential mitigation measures and other accommodation measures, or submission of the draft Crown Consultation and Accommodation Report or elements thereof;
• 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, along with the Crown consultation team, will respond 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;
• after the close of the Panel’s record of the review, the Agency, along with the Crown consultation team, will:
  • collaborate to the extent possible with potentially affected Indigenous groups, in assessing the potential impacts of the project on Aboriginal and/or Treaty rights;
  • 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 proposed mitigation and/or accommodation 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:
  • share with Indigenous groups any required updates related to the implementation of the IEPP and/or group-specific consultation plans;
  • consult on the Integrated Review Panel Report;
  • if there are outstanding issues and/or gaps identified in the Integrated Review Panel Report or by potentially affected Indigenous groups, consult on any additional recommended potential conditions that may be required for the Minister of the Environment’s (the Minister's) impact assessment Decision Statement and the Commission’s potential licence;
  • consult on any proposals for other accommodation measures in respect of potential adverse impacts on the exercise of Aboriginal and/or Treaty rights;
  • continue to develop and consult on a draft Crown Consultation and Accommodation Report; and
  • consult on a draft impact assessment Decision Statement.
• using the draft Crown Consultation and Accommodation Report as the primary vehicle, the Agency, along with the Crown consultation team, will share with Indigenous groups, 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), as well as any recommended potential conditions or other accommodation measures to address outstanding issues or adverse impacts;
• the Agency will coordinate the evaluation of the adequacy of the Crown’s consultation efforts to date, with input from the CNSC, participating federal authorities, and as required, the Department of Justice;
• based on consideration of all comments received on the draft Crown Consultation and Accommodation Report, the Agency will finalize the report, coordinate the response to any outstanding issues not already addressed in the Integrated Review Panel Report and Crown Consultation and Accommodation Report, and share with Indigenous groups as appropriate;
• the Agency will submit the Crown Consultation and Accommodation Report and recommendations (including draft impact assessment Decision Statement) to 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;

4.5. Decision Making Phase

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

• the Agency will coordinate consultation-related input and advice to the Minister and Governor-in-Council, including the outcomes of the Crown’s impacts-on-rights assessment, summary of Crown Consultation and Accommodation Report, consultation adequacy and any recommendations for other accommodation 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 Making phases up to a decision is announced, including the transfer of Crown consultation responsibilities to the CNSC, as appropriate.

4.6. Follow-up, Monitoring and Compliance and Enforcement Phase

The Agency will transfer the lead role for Crown consultation to the CNSC, 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 CNSC 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.

5. Canadian Nuclear Safety Commissions's Role in Crown Consultation

5.1. Overview

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

The CNSC will share with the Agency any applicable consultation-related procedures or features of its licensing basis for a regulated facility including the CNSC’s application of REGDOC-3.2.2, Indigenous Engagement, to ensure alignment of any early engagement activities conducted by the Agency or the CNSC including the potential for joint Agency-CNSC meetings with Indigenous groups in respect of a potential designated project.

5.2. Planning phase

The CNSC 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 CNSC 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 CNSC 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 NSCA 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 nature, scope and content of Aboriginal and/or Treaty rights that may be exercised by Indigenous groups within the area potentially affected by the project and a preliminary assessment of potential adverse impacts of the project on these 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 protocols entered into by Canada or the CNSC 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 CNSC 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 IEPP 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 CNSC’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 CNSC.

5.3. Impact Statement phase

Key activities that the CNSC will participate in include:

• assist the Agency in implementing relevant aspects of the IEPP and group-specific consultation plans, including participation in all consultation meetings with Indigenous groups, identifying and tracking potential mitigation or other accommodation measures, based on a preliminary review of the proponent’s Impact Statement / Licence Application;
• 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;
• support the Agency in reviewing comments on the proponent’s Impact Statement / Licence Application received from Indigenous groups to help inform the decision on whether the information or studies required have been provided by the proponent; and
• contribute to the development and consultation on a draft Crown Consultation and Accommodation Report.

5.4. Impact Assessment phase

Following the establishment of the Integrated Review Panel, the CNSC will, as part of the Crown consultation team:

• 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;
• after the close of the record of the review, participate in meetings with Indigenous groups as required to conduct two-way dialogue on potentially outstanding issues and any proposals for potential additional conditions or other accommodation measures 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;
• following public release of the Integrated Review Panel Report:
  • consult on the Integrated Review Panel Report,
  • if there are outstanding issues and/or gaps identified in the Integrated Review Panel Report or by potentially affected Indigenous groups, consult on any additional recommended potential conditions for the Minister’s impact assessment Decision Statement and the Commission’s potential licence;
  • consult on any proposals for or other accommodation measures in respect of potential adverse impacts on the exercise of Aboriginal and/or Treaty rights;
  • assist in the continued development of and consultation on a draft Crown Consultation and Accommodation Report; and
  • consult on a draft impact assessment Decision Statement.
• 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 NSCA; and 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, and assist in updating Indigenous groups on the potential next steps following issuance of the impact assessment Decision Statement

5.5. Decision Making Phase

The CNSC will, as part of the Crown consultation team:

• contribute to advice to 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.

5.6. Follow-up, Monitoring and Compliance and 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 CNSC, and identify the CNSC 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 CNSC will also notify Indigenous groups of issuance of a licence pursuant to the NSCA 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 CNSC will:

• monitor implementation of key mitigation measures, impact assessment and licence conditions, including requirements for on-going engagement between the project proponent and identified Indigenous groups and any other accommodation measures 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;
• contribute to the establishment of monitoring committees involving Indigenous groups, as appropriate; and
• make participant funding available for any ongoing engagement or consultation activities in relation to the life-cycle regulation of the project, where appropriate.

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

Points of Contact

The CNSC and the Agency will each identify a point of contact to coordinate Crown consultation and engagement activities throughout the integrated impact assessment. These identified points of contact will ensure coordination and that communication from both organizations avoids duplication.

The CNSC point of contact is the Director, Environmental Assessment Division for the designated project. The Agency’s point of contact is the regional Project Manager or Consultation Lead, as appropriate, for the designated project. Each participant will ensure that up-to-date contact information for the respective points of contact is made available to each other.