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On February 27, 2018, NOVA Gas Transmission Ltd. (the Proponent or NGTL) filed a project description with the National Energy Board (NEB or Board). The project description detailed NGTL’s proposal to expand the existing NGTL pipeline system in Alberta by adding approximately 350km of pipeline and 3 compressor stations between Grande Prairie and Rocky Mountain House, Alberta. All together, the pipelines, compressor stations, and related components are known as the NGTL 2021 System Expansion Project (the Project). On 20 June 2018, NGTL submitted its Application for the Project (Project Application).
The Project is a Designated Project under Regulations Designating Physical Activities and requires an Environmental Assessment (EA) pursuant to the Canadian Environmental Assessment Act, 2012 (CEAA 2012). The Project also requires a Certificate of Public Convenience and Necessity (Certificate or CPCN) pursuant to the National Energy Board Act (NEB Act).
The Project also may require other Statutory Authorizations under federal statutes.
This Agreement outlines the terms of when and how federal organizations agree to work together to facilitate a coordinated, timely, transparent and predictable Project Review for the benefit of the proponent, the general public, and IndigenousFootnote 1 peoples whose asserted or established Indigenous or Treaty rights may be impacted, and other potential 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 designated project’s expected environmental effects.
3.2 Entity/Entities: The group or collective that represents an Indigenous people whose asserted or established Indigenous rights are potentially impacted by the Project.
3.3 Federal Authority (FA): A federal minister or a federal department/agencyFootnote 2 as defined in section 2 of CEAA 2012 that provides specialist or expert information or knowledge to the NEB in support of the EA or to another Regulator in support of a Statutory Authorization.
3.4 Consultation with Indigenous peoples: The work by the NEB and other federal departments and agencies to consult with Indigenous peoples whose asserted or established Indigenous rights may be impacted by federal conduct in relation to the Project. Consultation with Indigenous peoples may include any potential accommodation for the expected impacts of the federal conduct on asserted or established Indigenous rights.
3.5 Crown’s Consultation and Accommodation Report (CCAR): A report prepared by NRCan to inform the Crown’s assessment of the adequacy of consultation with potentially affected Indigenous peoples and communities. The Report will outline all of the NEB’s activities regarding Consultation with Indigenous peoples that took place within the NEB assessment and the results in terms of addressing issues and concerns raised. It will describe any potential additional Crown consultation activities carried out to fill any gaps and outlines the outcomes of these activities.
3.6 List of Indigenous peoples to be consulted: The list of Indigenous peoples that will be consulted on this Project.
3.7 Indigenous Rights. Any asserted or established rights recognized or affirmed by section 35 of the Constitution Act, 1982Footnote 3. This term includes Aboriginal and Treaty rights.
3.8 Interdepartmental Working Group (IWG): A working group which may be established if the Governor in Council approves 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 Major Projects Management Office (MPMO) and comprised of a representative from each of the Regulators. The chair will convene the IWG on an as-needed basis.
3.9 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.
3.10 MPMO Project Tracker: The Major Project Management Office’s (MPMO) public website that tracks the progression of projects through the regulatory system.
3.11 NEB Process Advisor: NEB staff who assist the public to participate in the Project review by addressing public enquiries and providing information on the NEB Assessment process.
3.12 NEB Public Record: The public record maintained by the NEB of the evidence submitted by the proponent and the participants during the NEB Assessment of the Project, and includes the Hearing Order, Information Requests, and procedural decisions.
3.13 NEB Recommendation Report. A document setting out the NEB’s EA of the Project, including any EA conditions and the NEB’s recommendation to the Governor in Council (GiC) for consideration and decision, as well as the Board’s decisions under the NEB Act on the Project. The Recommendation outlines consultations with Entities undertaken through the NEB assessment, and provides an overview of the views of participants and the NEB on the project including a summary of the evidence filed. The Recommendation is accompanied by any conditions necessary for the Project.
3.14 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 EA under CEAA 2012 up to and including the issuance of a Recommendation Report to the GiC.
3.15 NEB Enhanced Indigenous Engagement Program: The Board’s Enhanced Indigenous Engagement (EIE) Program involves proactive contact with Indigenous peoples that may be affected by a proposed project, including those groups that have claimed or asserted the right to use the land for traditional purposes within the project area. One of the objectives of the program is to share early information about projects, the NEB review process, and the NEB’s Participant Funding Program (PFP), and to be available to visit Entities, face-to-face and upon request, to provide this information and to answer questions about the NEB review process.
3.16 Participant: Any individual or group (who might have an authorized representative) who may be directly affected by the Project or has relevant information and expertise in relation to the Project, and who has been granted standing by the NEB to participate in the NEB Assessment.
3.17 Parties: The signatories to this Agreement.
3.18 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.
3.19 Regulator: A federal minister, federal department, federal agency or federal board with a specific authority for issuing a Statutory Authorization on the Project, including an authorization pursuant to the NEB Act, after the NEB Assessment is complete.
3.20 Statutory Authorization: Any statement, certificate, order, permit, authorization, license, exemption or regulatory amendment pursuant to any federal statutory instrument that the Project requires to build or to operate the Project.
4.1 The Agreement applies throughout the Project Review.
4.2 The Parties commit to fulfilling 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, or the exercise thereof, of any Party. For greater certainty, the Agreement is consistent with CEAA 2012, the NEB Act and other federal acts that govern Statutory Authorizations (e.g., Fisheries Act and Navigation Protection Act).
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): NRCanwill play two roles in the Project Review. First, it will support the Minister of Natural Resources in making a recommendation to the GiC for consideration and decisions on the Project, including in relation to the Interim Approach. To support this role NRCan will develop the CCAR. Second, 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. NRCan will support the NEB on issues related to consultation with Indigenous peoples through the MPMO Deputy Minister Committee structure, as required, throughout the Project Review.
5.2 National Energy Board (NEB):The NEB will assess the Project Application under the NEB Act and will conduct, as the Responsible Authority, an EA of the Project. Throughout the NEB Assessment, the NEB will conduct consultation with Indigenous peoples in a manner that supports Indigenous consultation requirements of any expected Statutory Authorization under the Interim Approach. The NEB will submit a recommendation report to the Minister of Natural Resources. Throughout the NEB Assessment, the NEB will enable the participation of directly affected individuals and groups, including Entities, in accordance with applicable legislation, the rules of natural justice, and where possible the requirements of the other Regulators. The NEB will maintain the NEB Public Record. The NEB will provide Process Advisors to assist Participants and offer participant funding as provided for under the terms of its Participant Funding Program. The NEB will publish timelines for the NEB Assessment on its website.
5.2.1 Alternative Dispute Resolution: The NEB has an Alternative Dispute Resolution (ADR) service that is available to landowners, Entities, affected stakeholders and NEB-regulated companies to help resolve issues. This service can be provided upon request, at any time. Further information on the NEB’s ADR services is available on the NEB 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. FAs must also if requested by the NEB pursuant to section 20 (a) of CEAA 2012 provide to the NEB Assessment specialist or expert information or knowledge with respect to the Project.
All information and knowledge from FAs shall be filed on the NEB Public Record. All FAs shall actively monitor the NEB Assessment to ensure timelines (e.g., filing deadlines) are met.
Additionally, in relation to any Statutory Authorization, any FA when requested by a Regulator will provide the Regulator with specialist information or knowledge.
5.4 Governor in Council (GiC): The GiC is, by convention, the Governor General acting on the advice of Cabinet. The GiC makes the final decision based in part on the NEB Recommendation Report, pursuant to the NEB Act and CEAA, 2012. In making its decisions, the GiC can direct the NEB to issue a CPCN, dismiss the Application, or direct the NEB to reconsider its recommendations. The GiC may also extend the legislated timelines for the GiC to make its decisions. The GiC also determines whether the Indigenous duty to consult has been fulfilled.
5.5 Regulators: Each Regulator will review any applicable proponent application for a Statutory Authorization relevant to that Regulator’s authority. 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 required, that consultation with Indigenous peoples is conducted for each Statutory Authorization taking into consideration existing consultation with Indigenous peoples undertaken through the NEB Assessment. Each Regulator will meet the timelines contained in Annex II for its respective Statutory Authorization(s).
5.6 Crown-Indigenous Relations and Northern Affairs (CIRNA): Upon request, CIRNA will provide advice to any Party in relation to consultation with Indigenous peoples.
5.7 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 process.
6.2 The NEB will provide other Regulators with a briefing on the NEB assessment 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 20 June, 2018.
6.4 Letter of Completeness and Hearing Order. Upon determining that a Proponent’s Application is complete, the NEB publishes a Letter of Completeness and issues a Hearing Order that describes the Project and provides details on the NEB Assessment. The NEB issued the Letter of Completeness and Hearing Order for the NGTL 2021 Project on the Public Record on December 4, 2018.
6.5 Public Participation. The NEB will seek the views of the public and enable meaningful participation of affected parties throughout the NEB Assessment in a manner that is consistent with the NEB Act, CEAA 2012, the Interim Approach and the rules of natural justice including procedural fairness.
6.6 NEB Recommendation Report. The NEB Recommendation Report will set out the NEB’s views on the Project’s potential impacts on Entities including potential impacts on Indigenous rights. The NEB Recommendation Report will also include a summary of the issues raised by Entities during the NEB Assessment and the responses to these issues by the NEB, the Proponent and Participants. The NEB Recommendation Report will include conditions and references to regulations, and may include recommendations, that, in addition to the measures to be taken by the Proponent, seek to mitigate identified impacts. The NEB Recommendation Report will also note any matters raised that are beyond the mandate of the NEB.
6.7 Consultation with Indigenous peoples. The NEB will conduct consultation with Indigenous peoples through the NEB Assessment with those identified on the List of Indigenous peoples in a manner that is consistent with the rules of natural justice.
6.7.1 Initial List of Indigenous peoples. After receiving NEB input, NRCan prepared an initial List of Indigenous peoples, based on available Government of Canada information, and will file the List of Indigenous peoples on the NEB Record.
6.7.2 Initial filing. NRCan will file the letters written to the List of Indigenous peoples on the NEB Public Record as soon as possible, once the NEB Public Record opens for the Project.
6.7.3 Changes to the List of Indigenous peoples. NRCan may update the List of Indigenous peoples during the NEB Assessment based on information raised during the NEB Assessment, or additional information received from government departments/agencies, or based on information provided by any person or Entity. Following each such update, NRCan will file a revised List of Indigenous peoples on the NEB Public Record as soon as possible, providing a copy of such filings to the Proponent and entities on the List of Indigenous peoples.
6.7.4 Participation of Entities. The NEB will offer opportunities for Entities on the List of Indigenous peoples to participate in the NEB Assessment in accordance with the Indigenous Consultation Approach described below. On 20 September 2018, those Entities who had applied for standing as a Participant in the NEB Assessment were approved by the NEB for the status each Entity had requested (Intervenor or Commentor) (A94099 – Ruling No. 1 Participation in the Hearing). In future during the NEB assessment should an Entity file a late application to participate, the Board will review the application and make a determination having considered the rules of natural justice.
6.7.5 Consultation with Indigenous Peoples Approach. The NEB will:
- Contact all Entities on the List of Indigenous peoples and provide information about the NEB Assessment through its Enhanced Indigenous Engagement Program. NEB staff will meet with any Entity that requests a meeting, to provide more detailed information on process for the NEB Assessment, including information on participant funding;
- Invite all participants, including Entities who have standing in the NEB Assessment, to provide input to the NEB to inform the design of the NEB hearing process and future participation activities;
- Communicate to each Entity who have standing in the NEB Assessment, the schedule and process steps through which they will be consulted through the NEB Assessment;
- Provide funding as available through the NEB Participant Funding ProgramFootnote 4, in keeping with the rules and guidelines of the Participant Funding Program policy;
- Provide appropriate support, including regular updates, to each Entity who has standing in the NEB Assessment, through the NEB Process Advisor to assist them in their participation in the NEB Assessment;
- Seek to obtain, through information requests to Intervenors and the proponent:
- detailed information and views on the potential effects of the Project on the Indigenous rights of each Entity;
- details, views or recommendations on the mitigation measures that would reduce, to the extent possible, or eliminate any effects of the Project on those rights; and
- information or views on any potential residual impacts;
- during the NEB Assessment, require the Proponent to provide its information and analysis in relation to potential impacts of the Project on Indigenous rights of Entities, and provide the opportunity for Entities who have standing in the NEB Assessment to provide their comments on the potential impacts;
- provide for comment to all Entities who have standing in the NEB assessment, any draft conditions the NEB is considering recommending. The NEB will consider all comments, proposed amendments and additional conditions provided by participants who have standing in the NEB assessment and, will detail its consideration of these, in the NEB Recommendation Report.
- undertake an analysis of any potential impacts of the Project on Indigenous rights and include the results of the analysis in the NEB Recommendation Report. The Report will also note any matters raised that are beyond the mandate of the NEB;
- provide copies of the NEB Recommendation Report, once it is issued, to the Entities who have standing in the NEB Assessment; and
- follow, to the extent possible, relevant consultation protocols with Entities who have standing in the NEB Assessment that have a signed protocol agreement with the Government of Canada.
6.7.6 NEB support for Crown Consultation. The NEB will be available upon request to assist the Crown in its meetings with Entities to explain the NEB’s oversight of the lifecycle of the Project, its regulations and technical information regarding conditions.
6.7.7 Consultation with Indigenous Peoples Record. The NEB will maintain the NEB Public Record and prepare the NEB Recommendation Report, which together, will form the Consultation with Indigenous Peoples Record, which will be publically available for all to access on the NEB website. FAs will contribute to the Consultation with Indigenous Peoples Record during the NEB Assessment should they be responsible for performing additional consultation to supplement the NEB consultation process. Should any additional record of consultation be generated by FAs after the close of the NEB Public Record for the NEB Assessment, NRCan staff will incorporate this, as necessary, into the Crown Consultation and Accommodation Report.
6.7.8 NEB Recommendation Report. This document will include a description of the consultation process with Indigenous peoples that summarizes:
- 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;
- Conditions and commitments made by participants, including the proponent, to the NEB Assessment that address potential impacts;
- NEB’s understanding of the potential impacts of the Project on each Entity’s rights and the corresponding mitigation measures;
- Conclusions on the adequacy of consultation with Indigenous peoples through the NEB Assessment; and
- within an annex that includes each Entity, the NEB’s understanding of the potential impacts of the Project on each 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. The annex will also set out any remaining matters that are beyond the mandate of the NEB.
6.7.9 Working with Entities that are not participating in the NEB Assessment. When the Hearing Order is issued, the NEB will send a letter to all Entities on the list of Indigenous peoples to be consulted, that have not applied to participate in the NEB Process, which includes a copy of the Hearing Order, contact information for the process advisor, the link to the NEB website, and instructions as to register for updates on the NEB Assessment. Upon request, the Process Advisor can outline the process for late applications to participate.
7. GREENHOUSE GAS EMISSION ASSESSMENT
7.1 Environment and Climate Change Canada (ECCC): The assessment of upstream greenhouse gases (GHGs) is an important part of the decision making process by the Governor in Council. ECCC will ensure the completion of an assessment of the Project’s upstream greenhouse gas (GHG) emissions. Results of the assessment will be made publically available.
8. DETAILED ROUTE PROCESS
Should a certificate be issued and the Proponent file the required documentation for a detailed route hearing process, the NEB will carry out the detailed route determination process in a timely manner.
9. STATUTORY AUTHORIZATIONS PHASE
9.1 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.
9.2 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. 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.
9.3 FAs. Upon such a request, the FAs will provide the requested advice and support in line with their mandates and area(s) of expertise.
9.4 Other Regulators. Should the Project receive a Certificate of Public Convenience and Necessity, the Proponent may require other Statutory Authorizations for a number of other aspects of the Project’s construction, ongoing operations and eventual abandonment.
9.4.1 Pre-Adjudication.Transport Canada, the NEB, Environment and Climate Change Canada, and NRCan 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. Fisheries and Oceans Canada will participate in the review of the Project in accordance with Memorandum of Understanding with the NEBFootnote 5. 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.
9.4.2 Adjudication. Each Regulator will seek to 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).
9.5 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.
9.6 Consultation with Indigenous peoples during the Statutory Authorization Phase. Regulators will conduct consultation with Indigenous peoples on their respective Statutory Authorization(s) during the Statutory Authorization Phase. Where appropriate, Regulators may rely in part or in full on the consultation with Indigenous peoples conducted during the NEB Assessment. The NEB Consultation with Indigenous Peoples Record from the NEB assessment is publically available to all regulators on the NEB website.
9.6.1 Should additional consultation be necessary, each Regulator, except the NEB whose process is set out in 9.6.2 below , will undertake the following consultation with Indigenous peoples activities for its Statutory Authorization(s) while keeping the IWG apprised of progress:
- Develop a consultation plan, compile a List of Indigenous peoples and conduct a Depth of Consultation Assessment.
- Share the consultation plan with the IWG and groups on the List of Indigenous peoples prior to initiating Consultation with Indigenous peoples.
- Consult groups on the List of Indigenous peoples 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 consultation with Indigenous peoples.
- Maintain all records associated with the consultation with Indigenous peoples on the Statutory Authorization and share with NRCan upon request.
9.6.2 Should the NEB receive comments from Indigenous peoples in relation to a statutory authorization sought by the Proponent from the NEB during this phase, the NEB will consider any comments received, evaluate the issues and impacts, and respond as appropriate. The NEB will continue to work with FAs as applicable, including providing support to Regulators as requested or potentially required, for consultations with Indigenous peoples required for statutory authorizations during this phase.
9.6.3 To reduce consultation burden on Entities, Regulators may designate, through written agreement, one Regulator to coordinate consultation with Indigenous peoples. Any such written agreement will be shared with the IWG and the proponent.
9.7 Timelines. Regulators will provide the IWG with status updates on their adjudication of Statutory Authorization applications as milestones towards the statutory authorizations identified in Annex II are met or upon request of any member of the IWG.
10.1 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.
10.2 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.
10.3 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
March 03, 2019
Chair & Chief Executive Officer
National Energy Board
February 19, 2019
Environment and Climate Change Canada
February 12, 2019
Crown-Indigenous Relations and
Northern Affairs Canada
April 30, 2019
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|
||Proponent||28 February 2018.|
||NEB||01 June 2018|
||Proponent||20 June 2018|
||NEB||4 December 2018|
||NEB||Within 12 months of Hearing Order release|
||NEB||Within 15 months of Application being deemed complete|
||GiC||Within 3 months of the NEB Recommendation Report|
||NEB||Following the GiC Decision|
||Regulators||(See Annex II)|
Annex II: Statutory Authorization Timelines
|Regulator||Decision and Timeline||Anticipated Timeline (after receiving complete application from proponent)|
|Natural Resources Canada||Natural Resources Canada will issue licenses to work with explosives pursuant to the Explosives Act.||Within 60 days|