On December 16, 2016, Manitoba Hydro (the Proponent) filed an application with the National Energy Board (NEB or Board) to construct a 213 kilometre long, 500 kV international power line from the Dorsey Converter Station near Rosser, Manitoba to the Canada-United States border, crossing near Piney, Manitoba (the IPL). The IPL will connect with the Great Northern Transmission Line, a new 500 kV transmission line in the United States. All together, the IPL and associated elements are known as the Manitoba-Minnesota Transmission Project (the Project)
Based on the proposed design and route, the construction of the Project will require alterations to two of Manitoba Hydro’s existing powerlines: Glenboro and Riel. It will also require alterations to some of Manitoba Hydro’s intra-provincial transmission lines and facilities.
The Project is a Designated Project under Regulations Designating Physical Activities and requires an Environmental Assessment pursuant to the Canadian Environmental Assessment Act, 2012 (CEAA 2012). The Project requires a Certificate of Public Necessity and Convenience pursuant to the National Energy Board Act (NEB Act).
When the Governor in Council (GiC) designates an international power line project for the NEB Act certificate process (pursuant to s.58.16), the NEB is responsible for deciding whether to issue a certificate, subject to approval of the GiC, and what terms and conditions should be attached to the certificate.
The Project is expected to require other Statutory Authorizations under federal statutes, including the NEB Act, the Explosives Act, and the International Boundaries Commission Act.
This Agreement outlines the terms of how federal organizations agree to work together to facilitate a coordinated, timely, transparent and predictable review of the Project for the benefit of the proponent, and other interested parties.
The following terms are defined within the context of the Agreement.
- 3.1 Environmental Assessment (EA): The assessment, pursuant to CEAA 2012, of a project’s expected environmental effects.
- 3.2 Entity/Entities: The group or collective that represents an Indigenous people whose Indigenous rights are potentially impacted by the Project.
- 3.3 Federal Authority (FA): A federal minister or a federal department/agency/entity that provides specialist or expert information or knowledge to the NEB in support of the EA or to a Regulator in support of a Statutory Authorization.
- 3.4 Indigenous Consultation: The work by federal departments and agencies to consult with Indigenous peoples whose Indigenous Rights may be impacted by the federal conduct in relation to the Project. Indigenous Consultation includes any potential accommodation for the expected impacts of the federal conduct on Indigenous rights.
- 3.5 Indigenous List: The list of Indigenous peoples that will be consulted on this project and who may apply to become Participants.
- 3.6 Indigenous Rights. Any rights recognized or affirmed by section 35 of the Constitution Act, 1982.
- 3.7 Interdepartmental Working Group (IWG): A working group may be established if an NEB certificate is issued for the Project. This working group shares information on each Party’s work in relation to authorizations and permits. The IWG will be chaired by the NEB and comprised of a representative from each of the Regulators. The NEB will convene the IWG on an as-needed basis.
- 3.8 Interim Approach: The Government will collectively review the Project in line with the Interim Approach, in place since January 2016, guiding Government decisions on major project [reviews] initiated and continuing under CEAA 2012.
- 3.9 NEB Process Advisor: NEB staff who can answer questions on the NEB Assessment process.
- 3.10 NEB Public Record: The public record maintained by the NEB of the evidence submitted during the NEB Assessment. The NEB Public Record includes public information about the Board’s work such as the Hearing Order, Information Requests, and procedural decisions as well as filings from the Proponent and any Participants.
- 3.11 NEB Decisions. The decisions made by the NEB pursuant to section 27 and 52 of CEAA 2012 and section 58.16 of the NEB Act.
- 3.12 NEB Reasons for Decision. The document outlining the NEB’s EA of the Project, the NEB’s decision on the Certificate, the Certificate conditions (including EA conditions), and the reasons for those decisions.
- 3.13 NEB Assessment: The work undertaken by the NEB to assess the Project’s application for a Certificate of Public Convenience and Necessity under the NEB Act and an Environmental Assessment under CEAA 2012 up to and including the issuance of the EA Decision Statements and the issuance of the NEB Reasons for Decision.
- 3.14 Participant: Any individual, group or authorized representative who may be affected by the Projects or has relevant information and expertise in relation to the Projects, and who has been granted standing by the NEB to participate in the NEB Assessment.
- 3.15 Parties: The signatories to this Agreement.
- 3.16 Project Review: The work undertaken by the NEB and Regulators beginning with the filing of the Project’s application with the NEB, and concluding when the Project’s final federal Statutory Authorizations are issued.
- 3.17 Public Engagement Questionnaire: As required under the Interim Approach, an online questionnaire will be made available to provide the public with an opportunity to provide their views on the Project.
- 3.18 Regulator: A federal minister, federal department, federal agency, or federal board with a specific authority for issuing a Statutory Authorization on the Project, including pursuant to the NEB Act, after the NEB Assessment is complete.
- 3.19 Statutory Authorization: Any statement, certificate, order, permit, authorization, license, exemption or regulatory amendment pursuant to any federal statutory instrument that the Project requires to be built or to operate.
- 4.1 The Agreement applies throughout the Project Review.
- 4.2 The Parties commit to fulfill the terms of the Agreement individually and collectively.
- 4.3 The Agreement’s objective is to facilitate a coordinated, timely, transparent, and predictable Project Review.
- 4.4 Nothing in the Agreement fetters the statutory powers or authorities of any Party. For greater certainty, the Agreement is consistent with CEAA 2012, the NEB Act and other federal acts that govern Statutory Authorizations.
- 4.5 The Agreement implements Part I of the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects (the Directive) and its associated Memorandum of Understanding (MOU). The Agreement is consistent with the Directive and its MOU and does not alter those documents.
- 4.6 In the event of any inconsistencies between the Agreement and an Act of Parliament, federal regulations, the Directive or the MOU, that Act, regulation, Directive or MOU will, as the case may be, prevail over the Agreement.
5. Roles and responsibilities
The following outlines how the Parties will participate in the Project Review process.
- 5.1 Natural Resources Canada (NRCan): NRCan will play four roles in the Project Review. First, NRCan will support the Minister of Natural Resources in making a recommendation to the GiC on the Project, including in relation to the Interim Approach. Second, NRCan will develop an online questionnaire to solicit the public’s views on the Project. Third, NRCan will act as a point of contact for the Proponent during the Project Review to provide information on the federal review process. NRCan will apply to participate in the NEB Assessment in order to advance these responsibilities. Fourth, NRCan will prepare an Indigenous Consultation and Accommodation Report (ICAR) to inform the GiC’s decision on the Project.
- 5.2 National Energy Board (NEB): The NEB will assess the Project application under the NEB Act and conduct, as the Responsible Authority, EA of the Project. Through the NEB Assessment, the NEB will conduct Indigenous Consultations in a manner that supports Indigenous Consultation requirements of any expected Statutory Authorization, including the EA Decision Statement and the Certificate of Public Convenience and Necessity. The NEB will make the NEB Decisions on the Project. Throughout the NEB Assessment, the NEB will enable the participation of directly affected individuals and groups, including Entities, in accordance with applicable legislation and procedural fairness. The NEB will maintain the NEB Public Record. The NEB will provide Process Advisors to Participants. The NEB will publish timelines for the NEB Assessment on its website.
- 5.3 Federal Authorities (FAs): The FAs may apply to participate in the NEB Assessment and, if accepted by the NEB, may provide relevant specialist information and knowledge, in areas of authority, to the NEB during the NEB Assessment. The FAs will provide relevant specialist information to any Regulator at the request of that Regulator.
- 5.4 Regulators: Each regulator will review any applicable proponent application for a Statutory Authorization. Each Regulator will provide comprehensive information on how to submit a complete application for each applicable Statutory Authorization, how the Regulator will review the application, and the Proponent’s obligations for public engagement. Each Regulator will ensure, to the extent necessary, that Indigenous Consultation is conducted for each Statutory Authorization taking into consideration existing Indigenous Consultation through the NEB Assessment. Each Regulator will meet the timelines contained in Annex III for its respective Statutory Authorization(s).
- 5.5 Indigenous and Northern Affairs Canada (INAC): INAC will provide advice to any Party in relation to Indigenous Consultation.
- 5.6 Training: Each Party commits to training staff on the Agreement and designing systems, processes and procedures to support its full implementation.
6. Neb assessment
- 6.1 This section describes coordination and/or collaboration activities among the Parties during the NEB Assessment.
- 6.2 The NEB will provide other Regulators with a briefing on the NEB process, upon request. NEB staff will provide these briefings in accordance with the Code of Conduct for NEB employees.
- 6.3 Project Application. The Proponent posted the Project application on the NEB website on December 16, 2016.
- 6.4 Letter of Completeness and Hearing Order. Upon determining that the Proponent’s Application was complete, the NEB published a Hearing Order that described the Project and provided details on the NEB Assessment. The NEB posted the Hearing Order on the Public Record on 21 December 2017.
- 6.5 Public Participation. The NEB will enable meaningful public participation throughout the NEB Assessment in a manner that is consistent with the NEB Act, CEAA 2012, the Interim Approach and the principles of procedural fairness.
- 6.6 NEB Reasons for Decision and NEB Public Record. The NEB Reasons for Decision will highlight the NEB’s views on the Project’s potential impacts on Indigenous Peoples including potential impacts on Indigenous Rights. The NEB Reasons for Decision will also highlight any mitigation of identified impacts. The NEB Reasons for Decision will highlight, to the extent applicable, residual impacts and accommodation measures, if applicable. The NEB Public Record will include a summary of the issues raised by Entities during the NEB Assessment and the responses to these issues by the Board, the Proponent and Participants, including conditions.
- 6.7 Indigenous Consultation. NRCan will rely, to the extent possible, on the NEB to discharge the Duty to Consult with Indigenous groups. The NEB will conduct Indigenous Consultation through the NEB Assessment with groups on the Indigenous List.
- 6.7.1 Initial Indigenous List. After receiving NEB input, NRCan prepared an initial Indigenous List based on available Government of Canada information and sent it to the NEB and INAC. INAC considered the draft initial Indigenous List and provided advice to NRCan. Based on INAC input, NRCan finalized the Initial Indigenous List.
- 6.7.2 Initial filing. NRCan filed the Initial Indigenous List on the NEB Public Record on 27 April 2018.
- 6.7.3 Changes to the Indigenous List. NRCan may update the Indigenous List during the NEB Assessment based on information raised during the NEB Assessment, or additional information from government departments/agencies, or based on information provided by any person or Entity. Following each such update, NRCan will file a revised Indigenous List on the NEB Public Record as soon as possible, providing a copy of such filings to the Proponent and groups on the Indigenous List.
- 6.7.4 Participation of Entities. The NEB will offer opportunities for Entities on the Indigenous List to participate in the NEB Assessment in accordance with the Indigenous Consultation Approach described below. If an Entity applies to participate, the NEB will provide the Entity with standing as a Participant as requested (Intervenor or Commentor).
- 6.7.5 Indigenous Consultation Approach. The NEB will:
- contact all Entities on the Indigenous list and provide information about the NEB Assessment through its Enhanced Indigenous Engagement Program. The NEB will meet with any Entity that requests it, to provide more detailed information on process for the NEB Assessment, including information on participant funding available for the NEB Assessment.
- communicate to each Entity on the Indigenous List how they will be consulted through the NEB Assessment;
- provide appropriate funding as available through the NEB Participant Funding ProgramFootnote 1, to support participation of Entities (Intervenors) in the NEB Assessment;
- provide appropriate process support to Entities through the NEB Process Advisor,
- provide Entities with process information on next steps at key intervals (e.g. Procedural Updates);
- Obtain, through information requests to Intervenors and the proponent: i) detailed information and views on the potential effects of the Project on the Indigenous Rights of each Entity; ii) details, views or recommendations on the measures that would reduce to the extent possible or eliminate any effects of the Project on those rights; and iii) information or views on any potential residual impacts.
- offer draft conditions for comment and consider any proposed amendments or proposed additional conditions;
- undertake an analysis of any potential residual impacts on Indigenous Rights and make the results of the analysis, as included in the NEB Reasons for Decision, available to the Entity (or Entities) whose Rights are potentially impacted.
- 6.7.6 Accommodation Measures. The NEB will identify reasonable accommodation measures for any potential residual impacts on Indigenous Rights and seek feedback from the Entities on those measures through comments on the proposed draft conditions (e.g. certificate conditions or other practices and policies, relevant federal laws and regulations, and Proponent measures and commitments).
- 6.7.7 Indigenous Consultation Record. The NEB will maintain the NEB Public Record and prepare the NEB Reasons for Decision, which together will form the Indigenous Consultation Record.
- 6.7.8 Indigenous Consultation and Accommodation Report (ICAR). NRCan will prepare an ICAR to support the GiC’s decision on the Project. As necessary and when requested by NRCan, the NEB will provide factual clarifications to support the preparation of the ICAR. NRCan will consider the Indigenous Consultation Record as a basis for the development of the ICAR.
- 6.7.9 NEB Reasons for Decision. This document will provide a description of the consultation process that documents:
- the extent of participation in the NEB hearing by Entities;
- engagement of Entities by the proponent;
- views of Entities and potential impacts of the Project on Indigenous rights;
- accommodation measures that address potential impacts;
- the NEB’s understanding of the potential impacts of the Project on each Entity’s rights and the corresponding accommodations; and
- conclusions on the adequacy of Indigenous consultation through the NEB Assessment.
- an annex describing, for each Entity, the NEB’s understanding of the potential impacts of the Project on the Entity’s Indigenous Rights, along with each Entity’s specific concerns, views and input on the Project, to the extent known, and how these impacts and concerns have been addressed.
7. Statutory authorizations phase
- 7.1 This agreement only pertains to the review of applications for statutory authorizations – each Regulator may be responsible for ensuring the monitoring and enforcement related to any statutory authority it issues for the lifecycle of the Project.
- 7.2 NEB. Should the Project receive a Certificate of Public Convenience and Necessity, the NEB will be the Regulator of aspects of the Project’s construction, ongoing operations and eventual abandonment.Footnote 2 The NEB may be responsible for assessing the Proponent’s applications for Statutory Authorizations under the NEB Act in relation to construction and ongoing operations of the Project. In this work, the NEB may request technical advice and support from FAs.
- 7.3 FAs. Upon such a request, the FAs will provide the requested advice and support in line with their mandates and area(s) of expertise.
- 7.4 Other Regulators. Should the Project receive a Certificate of Public Convenience, the Proponent may require other Statutory Authorizations for a number of other aspects of the Project’s construction, ongoing operations and eventual decommissioning.
- 7.4.1 Pre-Adjudication. NRCan and ECCC will each review the Project Application during the NEB Assessment to determine whether the Proponent is likely to require a Statutory Authorization for which it or its Minister is responsible. Each of those departments that expects to be a Regulator will notify the Proponent and provide information on the Statutory Authorization(s) application and adjudication process(es). Each department may notify NRCan on the scope of its likely responsibilities as a Regulator.
- 7.4.2 Adjudication. Each Regulator will adjudicate the Proponent’s applications for Statutory Authorizations in a manner consistent with the timelines contained in Annex I. Each Regulator will prepare and publish a work plan to guide its Statutory Authorization(s).
- 7.5 Monitoring and enforcement agreements. Two or more Regulators may enter into an agreement whereby one Regulator agrees to administer the Monitoring and Enforcement responsibilities of the other Regulator(s). The Regulators will share any such agreements with the IWG and the Proponent.
- 7.6 Indigenous Consultation during the Statutory Authorization Phase. Regulators will conduct Indigenous Consultation on their respective Statutory Authorization(s) during the Statutory Authorization Phase. Where appropriate, Regulators may rely in part or in full on the Indigenous Consultation conducted during the NEB Assessment. The NEB will make the Indigenous Consultation Record available to other Regulators upon request.
- 7.6.1 Should additional consultation be necessary, each Regulator will undertake the following Indigenous Consultation activities for its Statutory Authorization(s) while keeping the IWG apprised of progress:
- Develop a consultation plan, compile an Indigenous List and conduct a Depth of Consultation Assessment.
- Share the consultation plan with the IWG and groups on the Indigenous list prior to initiating Indigenous Consultation.
- Consult groups on the Indigenous List per the consultation plan.
- Evaluate issues and impacts.
- Compile a table of expected impacts on Indigenous Rights and potential mitigation and accommodation measures.
- Assess the adequacy of the Indigenous Consultation.
- Maintain all records associated with the Indigenous Consultation on the Statutory Authorization and share with NRCan upon request.
- 7.6.2 To reduce consultation burden on Entities, Regulators may designate, through written agreement, one Regulator to coordinate Indigenous Consultation. Any such written agreement will be shared with the IWG and the proponent.
- 7.6.1 Should additional consultation be necessary, each Regulator will undertake the following Indigenous Consultation activities for its Statutory Authorization(s) while keeping the IWG apprised of progress:
- 7.7 Timelines. Regulators will provide the IWG with status updates on their adjudication of Statutory Authorization applications as milestones identified in Annex II are met or upon request of any member of the IWG.
- 8.1 Issues Resolution. The Parties will use their best efforts to resolve any differences of opinion in the application of the Agreement in an effective and timely manner.
- 8.2 Amendments. The Agreement may be amended in writing by mutual consent of the Parties. Where there is agreement that an amendment is warranted, NRCan will provide the proposed amendment to the Parties through the IWG initially and through the Deputy Minister’s Major Projects’ Management Office Committee for approval.
- 8.3 Termination of Agreement. At the conclusion of the Project Review, this Agreement automatically expires.
The Parties hereto have signed the Agreement, in counterpart, on the dates indicated below.
Natural Resources Canada
Chair & Chief Executive Officer
National Energy Board
Annex I: NEB Assessment Milestones and Timelines
Timelines identified in the Agreement represent the time expected to be taken by federal departments and agencies in carrying out their respective tasks for the federal review. The timelines do not account for time taken by Participants who are not signatories to this Agreement, such as the Proponent, or the Province.
|Project Review Milestone||Lead||Timeline|
|1||Project Description submitted||Proponents||October 08, 2015|
|2||Application filed||Proponents||December 16, 2016|
|3||Early engagement with Entities||NEB||July 21, 2017|
|4||Hearing Order and List of Issues released||NEB||December 21, 2017|
|5||NEB Oral Hearings||NEB||June 4-22, 2018|
|6||NEB Reasons for Decision, including EA Decision statement||NEB||Before March 2019|
|7||Decision on approval of the issuance of the certificate (if applicable)||GiC||Within 3 months of the NEB Decisions|
|8||Certificate of Public Convenience and Necessity issued, if required||NEB||Following the GiC Decisions|
|9||Determinations related to Statutory Authorizations, if required||Regulators||(See Annex II)|
Annex II: Statutory Authorization Timelines
|Regulator||Decision and Timeline|
|Natural Resources Canada||Natural Resources Canada will issue licenses to work with explosives pursuant to the Explosives Act within 60 days.|