PROJECT AGREEMENT FOR THE LINE 3 REPLACEMENT PROGRAM IN ALBERTA, SASKATCHEWAN AND MANITOBA

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PREAMBLE

The National Energy Board (NEB) has commenced a review pursuant to the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and National Energy Board Act (NEB Act) for Enbridge Pipelines Inc.’s (the Proponent or Enbridge) proposed Line 3 Replacement Program (the Project).

The Project consists of replacing the majority of the 1,073 km Line 3 pipeline from Hardisty, Alberta to Gretna, Manitoba. The Project will also include the replacement of some of the associated infrastructure and the decommissioning of the existing Line 3 Pipeline.

The NEB is a quasi-judicial administrative tribunal and nothing in this Project Agreement (Agreement) should be construed as permitting activities that will undermine the quasi-judicial function of the NEB process, including compliance with the principles of natural justice.

Nothing in this Agreement fetters the powers, statutory authorities and functions of federal departments/agencies and their respective Ministers.

The signatories to this Agreement (the Parties) commit to work together to facilitate an effective, accountable, transparent, timely and predictable federal review in relation to the Project and to contribute to fulfilling the Crown’s duty to consult Aboriginal groups.

1.0 PURPOSE

The purpose of this document is to provide detailed information pertaining to the federal review process where the NEB is the responsible authority for an environmental assessment (EA) pursuant to CEAA 2012 and will conduct a hearing process as defined by the NEB Act.

2.0 ROLES AND RESPONSIBILITIES

The following federal departments and agencies have identified an interest in the Project, and will participate in the federal review through the NEB hearing process in order to obtain information required to discharge the following roles and responsibilities associated with the Project, to the extent possible.  This will allow for relevant information with respect to their areas of responsibility and/or expertise to be reflected in the official hearing record.

  • Responsible Authority: The NEB will ensure that an EA and regulatory review are conducted and a Report is submitted to the Minister of Natural Resources (the Minister);
  • Federal authorities (FAs): Fisheries and Oceans Canada (DFO)Footnote 1, Environment Canada (EC), Natural Resources Canada (NRCan) and Health Canada (HC) may be in possession of specialist or expert information or knowledge with respect to the Project;
  • Regulatory departments/agencies: DFOFootnote 1 may have regulatory and statutory duties in relation to the Project;
  • AANDC has advisory responsibilities in relation to the Project to support consistency with the Government of Canada’s Whole of Government approach to Aboriginal consultation activities;
  • NRCan will manage the Submission by the Minister to Treasury Board for a decision and Order by the Governor-in-Council (GIC) on the Project; and,
  • The Major Projects Management Office (MPMO) will provide oversight and advice throughout the entire federal review in relation to the Project to ensure adherence to the service standards and roles and responsibilities of all Parties as described in the Agreement, including roles and responsibilities in regard to Aboriginal consultation.

3.0 ABORIGINAL CONSULTATION

The Parties are committed to a Whole of Government approach to Aboriginal consultation that is integrated with the NEB process, to the extent possible. Aboriginal engagement and consultation roles and responsibilities are identified in Annex III.

Where applicable, the terms and conditions of all existing agreements or protocols and/or memorandums of understanding between the Crown and Aboriginal groups will be respected.

4.0 TIMELINES

Timelines identified in the Agreement represent the time expected to be taken by federal departments and agencies in carrying out their respective tasks. The timelines do not account for time taken by the Proponent to provide information or undertake a study at the request of the NEB during the hearing process, as approved by the Chairperson, or regulatory departments during the regulatory phase. Timelines also do not take into account extensions that could be ordered under the NEB Act. The target timelines for the federal review are as follows:

  1. Submission of the NEB Report to the Minister setting out its recommendation on a Certificate as per the NEB Act – 15 months after the day on which the applicant has, in the NEB’s opinion, provided a complete application.
  2. Submission of the recommendation by the Minister to Treasury Board for decision by the GIC on the Project and issuance of the GIC Order setting out its decision on the project – Within 3 months from the submission of the NEB’s Report to the Minister.
  3. Regulatory action by the NEB in accordance with the GIC Order – Within 7 days after the Order is made.
  4. Regulatory decisions pursuant to the Fisheries Act – 90 days from receipt of a complete application submitted in accordance with, and subject to, the requirements of the Applications for Authorization under paragraph 35(2)(b) of the Fisheries Act Regulations assuming the GIC decision has been made and no additional consultation is required.

 

5.0 SIGNATORIES

The Parties hereto have signed the Agreement, in counterpart, on the dates indicated below.

Annex I

Key Milestones and Service Standards for the Environmental Assessment and Aboriginal Consultation

The following table sets out the target timelines for the federal review of the Project. Milestone deadlines within the Hearing Order apply to every participant in the hearing process and if a Party needs an extension, the Party must seek leave of the NEB and explain why an extension ought to be granted. All Parties acknowledge that extensions to deadlines may not be possible because of the legislated time limit.

  Milestone Lead Support as Needed Timeline/
Completion Date
1 Submit the Application Proponent   November 5, 2014
2 Determine that Application is complete to proceed to assessment NEB   February 4, 2015
3 Issue Hearing Order NEB   May 4, 2015
 

 

4

  Milestones outlined in the NEB Hearing Order Footnote 2
5 Submit NEB’s Report to the Minister of NRCan NEB   No later than May 4, 2016
6 Issuance of the GIC Order setting out its decision on the project TB Cabinet Committee TBS/
NRCan
Within 3 months of submission of NEB’s Report to the Minister of NRCan
7 Regulatory action by the NEB in accordance with the GIC Order NEB   Within 7 days after the Order is made
8 Issue letter, on behalf of the Government of Canada, to Aboriginal groups MPMO NRCan Within one week of GIC Order
9 Publish the GIC Order in the Canada Gazette PWGSC NRCan Within 15 days of the GIC Order

Annex II

Key Milestones and Service Standards for the Regulatory Decision-Making
Milestone Lead Timeline/
Completion Date
Regulatory Review for Fisheries and Oceans Canada
Receipt of an application for Paragraph 35(2)(b) Fisheries Act authorization Proponent To be determined by the Proponent
Review of application to determine if complete DFO Within 60 days from receipt of the application
Issuance of Fisheries Act authorization or Refusal to Authorize DFO Within 90 days from receipt of a complete application assuming the GIC decision has been made and no additional consultation is required

Annex III

Aboriginal Engagement and Consultation Approach and Roles and Responsibilities

1.0       Context

The Government of Canada consults with Aboriginal people for legal reasons as well as for reasons of good governance, sound policy development and decision-making. Canada has statutory, contractual and common law obligations to consult Aboriginal groups. The Government of Canada will take a Whole-of-Government approach to Aboriginal consultation in the context of major projects to ensure that Aboriginal groups are sufficiently consulted, and where appropriate accommodated, when it contemplates actions that may adversely affect established or potential Aboriginal and treaty rights. These rights are recognized and affirmed in section 35 of the Constitution Act, 1982.

This approach is mandated by both the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects and its associated Memorandum of Understanding. The Directive states that parties will work together towards a coordinated approach for Aboriginal consultation that is integrated with the EA, to the extent possible. The approach for federal consultation of Aboriginal groups for major projects was created in accordance with Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (AANDC; March 2011).

2.0       Identifying Aboriginal Groups

The MPMO, NEB and AANDC will work collaboratively to establish, upon receipt of a Project Description, a list of potentially impacted Aboriginal groups. The MPMO will finalize the Crown’s list.

Aboriginal groups consulted may change over time based on information received during the course of the review and information received from Aboriginal groups, as may the level of Aboriginal consultation activities undertaken by the Crown. The NEB, AANDC and MPMO will ensure that the Crown’s list of Aboriginal groups is kept up-to-date.

3.0       The Crown Consultation Process

The Government of Canada will to the extent possible rely on the NEB process, including the hearing, to discharge any duty to consult for the Project. Aboriginal groups that have Project-related concerns should convey these concerns to the NEB, through the mechanisms provided for in the NEB’s hearing process. Supplementary Crown consultation activities will occur, should there be outstanding issues or concerns raised by Aboriginal groups that fall outside of the NEB process.

To help facilitate this process, the NEB will:

  • Undertake an engagement program with identified Aboriginal groups to explain: (1) the NEB process; (2) the Participant Funding Program; and (3) how Aboriginal groups can participate in this process so  their views on potential effects and possible mitigation measures are heard and considered;
  • Send correspondence, on behalf of NRCan, to Aboriginal groups identified in the Crown’s list, outlining the Crown’s approach to Aboriginal consultation in relation to the Project;
  • Provide the MPMO with completed Record of Aboriginal contact forms for all engagement meetings, where an MPMO representative was not in attendance.
  • Conduct a public hearing process in respect of the Project application, including the following activities:
    • Require that the Proponent distributes the Hearing Order to potentially impacted Aboriginal groups;
    • Provide additional information, as necessary, to Aboriginal groups on how they can participate in the hearing process; and,
    • Consider cultural practices, location and timing when planning any oral portion of a hearing process.
  • Assess the potential impacts of the Project on Aboriginal rights and interests, as well as the appropriateness of potential mitigation measures; and,
  • Refer to the MPMO all issues raised by Aboriginal persons or groups in the context of the NEB's Aboriginal engagement activities. The NEB will also provide a list of outstanding issues raised by participating Aboriginal groups during the review process shortly after the close of the evidentiary record. The list will summarize the issues raised, the participation undertaken by Aboriginal groups, including a reference to the evidence submitted, and document what draft conditions, if any, were circulated by the NEB during the hearing.

The MPMO will:

  • Coordinate the Crown in a Whole of Government approach to Aboriginal consultation;
  • Provide oversight and coordination to ensure the overall consistency, accountability, and transparency of the Aboriginal Crown consultation effort, for the entire federal review;
  • In collaboration with other federal departments and agencies, assess project impacts to potential or established Aboriginal and treaty rights;
  • Coordinate the involvement and provide updates to regulatory departments and agencies and FAs regarding any federal Crown consultation activities with Aboriginal groups undertaken;
  • For Aboriginal consultation activities outside the NEB process, maintain a Record of Crown consultation;
  • In collaboration with other federal departments and agencies, evaluate the sufficiency of the review process to satisfy the Crown’s consultation obligations, including the NEB process and any other consultations outside of that process, to ensure the overall consistency, accountability and transparency of the Crown consultation effort during the entire Project review; and,
  • Work with federal departments and agencies to determine whether further Crown action is required outside the NEB process to meet the Crown’s duty.
  • Serve as the focal point for providing instructions and otherwise interfacing with the Department of Justice in relation to the Project.

Departments and Agencies will:

  • Participate in any of the above activities upon request by the NEB, the MPMO and/or departments and agencies, or may upon their own prerogatives, as appropriate.
  • Support issues analysis work that fall within respective mandates, where required.

Department of Justice will:

  • Participate in the establishment of the Crown’s list of potentially impacted Aboriginal groups;
  • Provide legal services, information and advice to the MPMO, and departments and agencies as appropriate and required throughout the federal review; and,
  • Assist in the evaluation of the scope, nature, and sufficiency of the Crown’s consultation efforts.

AANDC will:

  • Participate in the establishment of the Crown’s list of potentially impacted Aboriginal groups;
  • As appropriate and required throughout the federal review, provide information and advice to the MPMO and departments and agencies;
  • As required, provide advice and support to the evaluation of the scope, nature, and sufficiency of the Crown’s consultation efforts;
  • Follow-up with Aboriginal groups on project-related issues relevant to AANDC’s  mandate, if appropriate; and,
  • As required, provide information, advice and support to contribute to the ongoing assessment of the identified Aboriginal groups’ potential or established Aboriginal or Treaty rights. Where appropriate, this will also include advice on modern treaties. This will support the necessary adjustments to the consultation process, as required.

NRCan will:

  • Prepare a submission by the Minister to Cabinet for a decision and Order in Council for the project; and,
  • Provide analysis, input, and advice to support government decision-making, as required.