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WHEREAS the Government of Canada is committed to improving the federal environmental assessment (EA) and regulatory review processes for major resource projects to enable a more effective assessment and mitigation of potential environmental effects, while protecting the health and safety of Canadians and promoting innovation and competitiveness within the Canadian resource industry sectors;
AND WHEREAS the Government of Canada is committed to undertaking a process of early, effective and meaningful engagement and consultation with Canada's Aboriginal peoples concerning contemplated Crown conduct with respect to, among other things, major resource projects that may adversely affect established or potential Aboriginal and treaty rights under s.35 of the Constitution Act 1982;
AND WHEREAS the Government of Canada has created the Major Projects Management Office (MPMO) for the purpose of overseeing and tracking the federal review and Aboriginal engagement and consultation for major resource projects;
AND WHEREAS Ontario Power Generation (the Proponent) has submitted a Project Description in support of its proposal to develop a Deep Geologic Repository (DGR) for Low and Intermediate Level Radioactive Waste at the Bruce Nuclear Site at Kincardine, Ontario (the Project);
AND WHEREAS the Canadian Nuclear Safety Commission (CNSC) has regulatory and statutory duties in relation to the Project and will participate in the federal review of the Project;
AND WHEREAS a Joint Review Panel (JRP) will be appointed to assess the environmental effects pursuant to the Canadian Environmental Assessment Act (CEAA) and the application for a Licence to Prepare Site and Construct under the Nuclear Safety and Control Act (NSCA);
AND WHEREAS nothing in this Project Agreement (the Agreement) fetters the powers, statutory authorities and functions of federal departments and their respective Ministers;
AND WHEREAS the Canadian CNSC is a quasi-judicial administrative tribunal;
NOW THEREFORE the signatories to this Project Agreement (Agreement) commit to work together to facilitate an effective, accountable, transparent, timely and predictable federal review in relation to the Project and to contribute to the discharging of any duty to consult with Aboriginal groups.
This Agreement describes the main activities of the federal review process and outlines the key roles and responsibilities of the federal signatories (the Parties) to this Agreement in relation to the Project, including EA, regulatory review, and Aboriginal engagement and consultation.
In addition, the Agreement establishes service standards for each milestone of the federal review as the basis for tracking and managing progress. These have been established on the basis of a number of assumptions, some of which relate to activities of participants to this Project that are not signatories to this agreement, such as the Proponent, Aboriginal Groups, and the JRP. Should events unfold in a manner that is different from what has been assumed, the milestones will necessarily be different.
2.0 ROLES AND RESPONSIBILITIES
The Proponent is proposing the preparation of a site for, and the construction, operation, decommissioning and abandonment, of the Project components and activities for a Deep Geologic Repository for Low and Intermediate-Level Radioactive Waste at the Bruce Nuclear Site at Kincardine, Ontario.
Based on the information provided by the Proponent, the following federal departments and agencies have identified an interest in the Project, and will participate in the federal review in relation to the Project as follows:
- CNSC has regulatory and statutory responsibilities under the NSCA. The CNSC as the Responsible Authority (RA) will ensure that an EA is completed as defined under the CEAA. The CNSC will also coordinate the federal input for the EA in relation to the Project. The CNSC will also act as the Crown Consultation Coordinator (see Annex IV);
- Natural Resources Canada (NRCan) and Environment Canada (EC) are Federal Authorities under the CEAA and are in possession of specialist or expert information or knowledge with respect to the Project, and upon request shall make available that information or knowledge to the RA or the JRP (see Annex V);
- Health Canada (HC) may be considered a Federal Authority under the CEAA and may be in possession of specialist or expert information with respect to the Project, and, upon request, shall make available that information or knowledge to the CNSC or JRP (see Annex V);
- The Canadian Environmental Assessment Agency (CEA Agency) has administrative and advisory responsibilities under the CEAA in support of the EA and JRP (see Annex V);
- Aboriginal Affairs and Northern Development Canada (INAC) has advisory responsibilities in regard to Aboriginal Engagement and Consultation (see Annex V); and,
- The MPMO has administrative and advisory responsibilities under the Memorandum of Understanding for the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects (MOU) and Cabinet Directive. The MPMO will provide oversight and advice throughout the entire federal review in relation to the Project, to ensure adherence to the service standards and the respective roles and responsibilities of all Parties. Additionally, the MPMO will provide selective intervention to help address identified challenges and, in collaboration with other federal entities, will play an oversight role throughout the federal review in regard to Aboriginal engagement and consultation, (see Annex V).
2.1 Environmental Assessment Process and Regulatory Review Process
The Joint Review Panel Agreement (JRPA) entered into by the Minister of the Environment and the President of the CNSC on January 26, 2009 establishes a JRP that will conduct the assessment of the environmental effects of the Project pursuant to the CEAA and will consider the licence application under the NSCA in a manner that discharges the requirements set out in the CEAA and permits it to obtain the information and evidence required for it to consider the licence application under the NSCA. The Minister of the Environment has also provided the Proponent with the Environmental Impact Statement (EIS) Guidelines for the Project which prescribes the requirements of the content of the EIS.
The Minister of the Environment and the CNSC have established the scope of project for the federal review in relation to the Project as outlined in the JRPA. It includes site preparation, construction, operation, decommissioning and abandonment of a Deep Geologic Repository for Low and Intermediate Level Radioactive Waste. Operations will involve activities required to commission, operate and maintain the Project, including management of all conventional and radioactive wastes.
The JRP has statutory responsibilities pursuant to the CEAA (sections 16, 16.1, 34, 35) and the NSCA (Sections 20, 22, and 24). The JRP Secretariat has advisory and administrative responsibilities as set out in the JRPA. The JRP is not a party to this Agreement.
Through the EA process, the CNSC will confirm any regulatory decisions required in relation to the Project that are included in the Law List Regulations. If there are no regulatory decisions required by the CNSC, the CNSC will terminate the EA with respect to the Project. The EA and Regulatory Review timelines detailed in this Agreement assume that the Proponent will submit a complete and adequate NSCA application no later than the date of submission of the EIS.
2.2 Aboriginal Engagement and Consultation Process
The Parties are committed to a "Whole of Government" approach to Aboriginal engagement and consultation in the context of major resource projects to ensure that Aboriginal groups are sufficiently consulted, and where appropriate accommodated, when the Government of Canada contemplates actions that may adversely affect established or potential Aboriginal and treaty rights. To the extent possible, and with the CNSC responsible for coordination, the Parties will work together towards a coordinated approach for Aboriginal consultation that is integrated with the EA and regulatory review processes.
The proposed Aboriginal Engagement and Consultation Process and Roles and Responsibilities are identified in Annex III.
The target timelines for the EA and Regulatory Review processes are detailed in the Gantt chart in Annex I, and are as follows:
- a) Completion of the EA (excluding Government Response) - 16 months from the date of the submission of the EIS
- b) Review of the application for a Licence to Prepare Site and Construct - 3 months from the EA Course of Action decisions posted on the Canadian Environmental Assessment Registry (CEAR), assuming submission of applications with the EIS
- c) Review of the application for a Licence to Operate - Within 2 years of submission of the complete application for a Licence to Operate
Based on current plans and estimates - and assuming the timely submission of all documents, applications, additional information, the timely completion of JRP activities, and the discharge of the Crown's Aboriginal Consultation duty - it is anticipated that the licence to operate would be considered by the Commission in 2017.
The online MPMO Tracker will provide for transparent and publicly accessible monitoring of the progress of the federal review.
4.0 FOLLOW-UP AND MONITORING
The CNSC will work with FAs to ensure that appropriate measures are in place, in conjunction with the Proponent, to ensure the follow-up and monitoring related to their areas of interest and regulatory responsibility that were identified through the EA and any conditions attached to licences and approvals issued as part of the regulatory review are adhered to and effectively implemented.
The milestones, timelines and service standards set out in this Agreement, subject to any amendments, will provide the basis against which the MPMO will track and monitor the progress of the federal review process. The MPMO will report on this progress in the MPMO Tracker and suspend timelines in situations such as:
- a) the review is delayed at the request of the Proponent, another jurisdiction, or the JRP;
- b) the JRP, the CNSC and/or FAs have indicated to the Proponent a requirement to provide additional information necessary for the completion of the EA, the Regulatory Review, or that the information provided is insufficient;
- c) the federal review process cannot proceed as a result of circumstances related to the Aboriginal Engagement and Consultation process;
- d) litigation or other court action prevents the completion or continuation of the federal review process.
Tracking will begin upon the submission of the EIS to the JRP.
The Parties will use their best efforts to resolve any differences of opinion in the interpretation or application of this Agreement in an effective and timely manner.
Issues relating to the environmental assessment, regulatory review, or Aboriginal engagement and consultation in relation to the Project will be resolved through direct discussions and collaboration between the involved Parties, supported by the MPMO.
Should issues remain outstanding, they will be referred to the appropriate senior level committee established through the MPMO initiative.
The Parties will participate in an informal evaluation of the effectiveness of the federal review process in relation to the Project within 90 days of the issuance of the CNSC's EA Course of Action decision, if required. The level of effort and format of the review will be appropriate to the scale of the project and issues encountered.
The Parties may recommend to the MPMO whether a change to the federal review process or to the Project warrants an amendment to the Agreement. Where there is agreement that an amendment is warranted, the MPMO on behalf of the parties will provide a proposed amendment to the Major Projects Deputy Ministers' Committee for consideration.
Unless otherwise determined by the MPMO in collaboration with the Parties, amendment of the Agreement shall not cause the federal review to stop with respect to any Agreement-related activities that might be ongoing at the time when the need for amendment is identified.
6.0 PROJECT AGREEMENT
The Parties hereto have signed the Project Agreement, in counterpart, on the dates indicated below.
|Original signed by
Natural Resources Canada
|May 11, 2009
|Original signed by
Canadian Nuclear Safety Commission
|April 14, 2009
|Original signed by
Canadian Environmental Assessment Agency
|April 23, 2009
|Original signed by
|March 23, 2009
|Original signed by
Indian and Northern Affairs
|April 22, 2009
Annex V- Natural Resources Canada, Environment Canada, Canadian Environmental Assessment Agency, Health Canada, MPMO, and Aboriginal Affairs and Northern Development Canada: Roles and Responsibilities
Gantt chart - Target Timelines for the Federal Regulatory Process for the Project
|Description/Activity||Lead||Support As Needed||Service Standard/Completion Date|
|Notice of Commencement Posted on Canadian Environmental Assessment Registry (CEAR)||CNSC||CEA Agency||February 16, 2006|
|Request for a Joint Review Panel||CNSC||CEA Agency||December 21, 2006|
|Minister of the Environment refers Project to EA by a Review Panel||Minister of the Environment||CEA Agency||June 29, 2007|
|Federal Government Announces Participant Funding (Phase I)||CEA Agency||July 3, 2007|
|Federal Government Awards Participant Funding (Phase I)||CEA Agency||August 28, 2007|
|Comment period on the proposed EIS Guidelines and JRP Agreement (including Joint Panel Terms of Reference)||CEA Agency and CNSC||EC, NRCan||April 4, 2008 to June 18, 2008|
|Final EIS Guidelines Issued||Minister of the Environment||CEA Agency, CNSC||January 26, 2009|
|JRP Agreement Issued||Minister of the Environment and CNSC||CEA Agency||January 26, 2009|
|Appointment of JRP by the Minister of the Environment and the President of the CNSC||Minister of the Environment, CNSC||CNSC and CEA Agency||Determined by the Minister of the Environment and the President of the CNSC|
|Federal Government Announces Participant Funding (Phase II)||CEA Agency||At least 45 calendar days prior to expected receipt of the Proponent's EIS|
|Submission of complete EIS and technical information to support application for Licence to Prepare Site and Construct||Proponent||JRP||Dependent on the timing of the submission of the EIS, and technical information to support Licence to Prepare Site and Construct to the JRP by the Proponent|
|JRP announces commencement of public review and comment period.||JRP||Within 14 calendar days of Submission of complete EIS and technical information|
|Aboriginal Community Engagement on EIS||CNSC||CEA Agency, EC, NRCan||Process & schedule to be determined in cooperation with Aboriginal communities
|Public comment period on, and Government review of, EIS and technical information to support application for Licence to Prepare Site and Construct||JRP, JRP Secretariat||EC, NRCan, CNSC||The date of commencement of this step is determined by the JRP. The duration is 7 months in addition to time the Proponent needs to respond to information requests.|
|JRP submits information request(s) to Proponent (if required)||JRP Secretariat JRP||CNSC||The frequency and timing of the submission of information requests to the Proponent will be determined by the JRP, and may lengthen the review period of the EIS.|
|Announcement of Public Hearings||JRP||90 calendar days prior to hearing|
|Written Government Interventions||CNSC, EC, NRCan, CEA Agency||During the 90 day period prior to the commencement of hearings|
|Public Hearings on the EIS and technical information to support application for Licence to Prepare Site and Construct||JRP||The date of commencement of this step as well as the duration of the hearings is determined by the JRP|
|Government Interventions||EC, NRCan, CNSC||During hearings as determined by the JRP|
|Submission of Joint Review Panel Report to Government of Canada||JRP||To be posted on the CEAR within 90 calendar days of the close of hearings|
|Government Response to JRP Report||NRCan||CNSC, EC, CEA Agency, MPMO||Within 12 weeks of submission of JRP report under the condition that the RAs have determined that the Crown's duty to consult has been adequate to this particular point and that the CEAA requirements have been met|
|Course of Action Decisions pursuant to the CEAA, s 37 posted on CEARIS||CNSC||CEA Agency||Within 1 week of Government Response|
Aboriginal Engagement and Consultation Process and Roles and Responsibilities
The Government of Canada consults with Aboriginal people for reasons of good governance, sound policy development and decision-making as well as for legal reasons. Canada has statutory, contractual and common law obligations to consult with Aboriginal groups. The common law duty to consult with Aboriginal groups applies when the Crown 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.
The Government of Canada will take a "Whole of Government" approach to Aboriginal consultation in the context of major resource projects to ensure that Aboriginal groups are sufficiently consulted, and where appropriate accommodated, when actions are contemplated that may affect established or potential Aboriginal and treaty rights. This approach is mandated by both the Cabinet Directive and its subsequent MOU for Improving the Regulatory Performance for Major Natural Resource Projects (June, 2007). The Directive states that federal parties will work together towards a coordinated approach for Aboriginal Consultation that is integrated with the Environmental Assessment (EA) and Regulatory Review.
2.0 Identifying Aboriginal Groups
The CNSC, in conjunction with the MPMO, will identify Aboriginal groups for engagement and will determine the appropriate level of engagement and consultation for identified groups. Aboriginal groups engaged may change over time based on information received during the course of the assessment and the feedback from Aboriginal groups, as may the level of engagement and consultation activities undertaken by the Crown.
3.0 The Federal Crown Consultation Process for the OPG Deep Geologic Repository
The "Whole of Government" approach for Aboriginal Engagement and Consultation activities will be implemented throughout the entire EA and regulatory review processes. Although best efforts will be made to ensure that the timeframe for Consultation activities coincides with key EA and Regulatory Review milestones and processes, it is important to acknowledge that timeframes for Consultation activities may diverge from pre-established EA and Regulatory Review timeframes, based on the Consultation requirements. Should modifications to timeframes be required due to Consultation obligations, revisions will be discussed by all Parties.
The CNSC will act as the Crown Consultation Coordinator (CCC) for the federal review in relation to the Project, to the extent possible under its mandate, as a means to satisfy the Crown's obligations. Given the quasi-judicial nature of the CNSC, the Crown will exercise an oversight role to ensure that the CNSC-led process sufficiently contributes to the Crown's fulfilling of its legal duty to consult to the maximum extent possible.
4.0 Roles and Responsibilities of Parties
Roles and responsibilities of each participating federal entity for the review of the project are as follows:
The roles and responsibilities of the JRP are outlined in subsection 4.1(c) of the Joint Review Panel Agreement (JRPA).
The CNSC will:
- Act as the Crown Consultation Coordinator (CCC) for the federal review in relation to the Project.
- Coordinate and facilitate the Crown's Consultation activities before, during and after the federal EA, including:
- Draft and manage Aboriginal engagement and consultation work plan, in collaboration with the MPMO and other Parties;
- Engage Aboriginal groups, in cooperation with federal authorities as appropriate;
- Ensure that Consultation activities required for the Project are integrated with the EA process, as a means to discharge the Crown's duty to consult;
- Ensure that a consultation process is in place for the Regulatory Review;
- Track and refer project specific issues raised by Aboriginal peoples to the appropriate parties (e.g. RAs, FAs, Proponent, province);
- Track and refer non-project specific issues (e.g. land claims, treaty rights) to appropriate authorities (e.g. INAC, province);
- Address project specific issues in the context of the EA and Regulatory Review;
- Facilitate multi-party Consultation activities where necessary;
- Represent the Crown along with RAs and FAs (and the province, where appropriate) during Consultation activities;
- Compile and update the Record of Crown Consultation activities conducted during the EA and Regulatory Review; and,
- Assist in the evaluation of the scope, nature, and sufficiency of the Crown's consultation efforts, with input from INAC and RAs.
The Major Projects Management Office (MPMO) will:
- Provide oversight to ensure the overall consistency, accountability and transparency of the Aboriginal Crown engagement and consultation effort for the entire project review;
- House and maintain the official Record of Crown Consultation activities for the project;
- Ensure the Proponent receives Early Engagement Guidance;
- Conduct early information gathering and communication with Proponent, government departments, Aboriginal peoples and other stakeholders about engagement needs, activities and forthcoming Consultation responsibilities;
- Identify and track key regional or Consultation-relevant issues as early as possible;
- Incorporate information relating to Consultation activities into the project Monitoring and Tracking System;
- Refer issues requiring resolution to the appropriate committee established for the MPMO initiative, as appropriate;
- Respond to general enquiries regarding Consultation activities related to different projects by Federal departments and agencies; and,
- Evaluate the scope, nature, and sufficiency of the Crown's consultation efforts on behalf of the Government with Canada in coordination with the Department of Justice, INAC, and RAs.
The CEA Agency will:
- Provide support to the Crown Consultation Coordinator with respect to the Environmental Assessment process; and,
- Provide funding opportunities for Consultation activities in support of the JRP process through the Aboriginal Funding Envelope of the Agency's Participant Funding Program.
Natural Resources Canada and Environment Canada will:
- Participate in any of the above activities upon request of the Crown Consultation Coordinator and/or CNSC.
The Department of Justice (DOJ) and INAC will:
- Provide legal services, information and advice to the MPMO and federal authorities as appropriate and required throughout the EA and Regulatory Review phases; and,
- Assist in the evaluation of the scope, nature, and sufficiency of the Crown's Consultation efforts.
Canadian Nuclear Safety Commission Roles, Responsibilities, Key Milestones and Service Standards
Joint EA and Licensing
- Form and chair Federal Project Committee for the purposes of the JRP process;
- Preparing the detailed EA and Licensing Work Plan and associated timelines;
- Preparing and managing the Aboriginal engagement and consultation work plan and associated timelines;
- Coordinate the Government review of the EIS;
- Review and comment on the EIS and participate in the analysis of comments on the EIS;
- Provide support to the JRP pursuant to the NSCA, the CEAA, and the JRPA as requested by the JRP or determined by CNSC;
- Perform the assessment of the Proponent's first licence application within a framework of accepted project management practices;
- Consult with affected/potentially affected Aboriginal groups on the EIS and on the JRP Report, as appropriate;
- Take a course of action decision following the Government Response to the JRP Report;
- Provide input into the follow-up and monitoring programs relative to CNSC's areas of regulatory responsibilities and areas of interest, as required; and
- Provide input into, and lead the design of, follow-up and monitoring programs, with other RAs and FAs, to ensure implementation of mitigation measures, and those aspects of the follow-up program, related to CNSC's areas of regulatory responsibilities and areas of interest, as required.
- Perform the assessment of the Proponent's subsequent licence applications (i.e. operation, decommissioning and abandonment) within a framework of accepted project management practices;
- Communicate with proponent regarding completeness of future licence applications;
- Ensure implementation of mitigation measures through appropriate licences;
- Ensure implementation of follow-up program through appropriate licences;
- Provide public access to the licensing project file for future licence applications.
Note: The following milestones represent the key activities associated with the regulatory process for the Project and are not intended to reflect the entire work plan schedule associated with this Project. Furthermore, these milestones may need to be adjusted as additional information is made available.
|Submission of technical information to support application for Licence to Prepare Site and Construct||Submission of technical information to support application for Licence to Prepare Site and Construct||Proponent||To be determined by the Proponent|
|Technical Review of Application for Licence to Prepare Site and Construct||The intent of the technical review is to determine the adequacy of the Licence Application. Licence Application Review will focus but not be limited to:
||CNSC||To be completed within 28 weeks of receipt of technical information to support application for Licence to Prepare Site and Construct|
|Make Decision on application for Licence to Prepare Site and Construct under NSCA||Should the EA decisions be favourable to the Project, the panel of the Commission will make its decision on the licence application to prepare the site and construct pursuant to section 24 of the NSCA.
Note the JRP public hearings cover both the EA and application for Licence to Prepare Site and Construct.
|CNSC||Within 13 weeks of the EA Course of Action decision|
|Submission of application for Licence to Operate under the NSCA||Submission of technical information to support the application for a Licence to Operate||Proponent||To be determined by the Proponent|
|Consider application for Licence to Operate||The Commission conducts hearings on the application for a Licence to Operate, in accordance with the NSCA and its Rules of Procedure||CNSC||Within 2 years of submission of the complete application for a licence to operate|
Natural Resources Canada, Environment Canada, Canadian Environmental Assessment Agency, Health Canada, MPMO, and Aboriginal Affairs and Northern Development Canada: Roles and Responsibilities
|PARTY||ROLES / RESPONSIBILITIES|
|Expert FA roles and responsibilities, as identified below, are related to the areas of available expertise and mandates of the respective federal entity.|
Natural Resources Canada
|Canadian Environmental Assessment Agency||
|Natural Resources Canada||
|PARTY||ROLES / RESPONSIBILITIES|