Memorandum of Understanding between the National Energy Board and Fisheries and Oceans Canada for Cooperation and Administration of the Fisheries Act and the Species at Risk Act Related to Regulating Energy Infrastructure
December 16, 2013
The NEB and DFO have entered into a MOU regarding fish and fish habitat. Through this MOU, the NEB will now be responsible for assessing potential impacts to fisheries from proposed NEB regulated pipeline and power line applications.
Applications submitted to the NEB shall be reviewed under the Fisheries Protection Provisions of the Fisheries Act to determine if impacts shall occur, and if an authorization will be required under the Fisheries Act. The NEB shall also become responsible to determine if proposed projects will impact aquatic species at risk and require permitting under the Species at Risk Act. If the NEB determines than an authorization or permit will be required, DFO shall be notified and will be responsible for issuing the authorization or permit.
This MOU better integrates the Government of Canada’s initiative to streamline application processes by eliminating the requirement for duplicate reviews.
Fisheries and Oceans Canada (“DFO”)
National Energy Board (“NEB”)
- the Constitution Act, 1867 assigns to the federal government exclusive jurisdiction for sea coast and inland fisheries, and the Fisheries Act sets out the powers and duties of the Minister of Fisheries and Oceans with respect to conservation and protection of fish and fish habitat, specifically the habitat protection and pollution prevention provisions;
- Fisheries and Oceans Canada (“DFO”) is responsible for the administration of the Fisheries Act, specifically the fisheries protection provisions including sections 6, 20, 21, 35, 37, and 38, related to the conservation and protection of Canada's marine and freshwater fisheries resources and their habitats from the impact of human activities;
- the Species at Risk Act (“SARA”) identifies the Minister of Fisheries and Oceans as the competent minister with respect to aquatic species other than those individuals in or on federal lands administered by the Parks Canada Agency and, in that capacity, the Minister of Fisheries and Oceans has powers and duties with respect to protecting aquatic species listed under that Act;
- the National Energy Board (“NEB”) is a quasi-judicial administrative tribunal with regulatory responsibilities under the National Energy Board Act (“NEBA”) for inter-provincial and international natural gas, oil and commodity pipelines, international power lines and designated inter-provincial power lines (“energy infrastructure”);
- DFO and the NEB have respective responsibilities for federal regulatory reviews and approvals and environmental protection related to the construction and operation, decommissioning, and abandonment of energy infrastructure and as such are committed to fostering and developing a collaborative approach to fish and fish habitat protection that is consistent in all parts of Canada;
- when the Crown contemplates conduct that may adversely affect established or potential Aboriginal and treaty rights in relation to the issuance of authorizations under the Fisheries Act, and/or permits under SARA, the NEB application assessment process will be relied upon by DFO to the extent possible, to ensure Aboriginal groups are consulted as required, and where appropriate accommodated; and
- DFO and the NEB are committed to improve the efficiency and effectiveness of the assessment of applications for energy infrastructure through coordination of regulatory activities under the NEBA, the Fisheries Act, and SARA.
Therefore, DFO and the NEB (the “Parties”) agree to the following Memorandum of Understanding (“MOU”):
2. Guiding Principles
- The Parties will use the provisions of this MOU to support the Government of Canada’s regulatory process improvement objectives through coordination to:
- Facilitate effective and efficient use of government resources in order that regulatory decisions are made in a timely manner by applying a one-project one-review approach;
- Promote clarity and consistency of the regulatory decision making process; and
- Ensure responsibilities for mitigation, monitoring and reporting, compliance and enforcement, follow-up monitoring, and Aboriginal consultation are addressed.
- Decisions with respect to the issuance of paragraph 35(2)(b) Fisheries Act Authorizations remains DFO’s responsibility until and unless the NEB is prescribed as a person or entity for granting such authorizations, in accordance with paragraph 35(2)(c), pursuant to regulations made by the Governor in Council under subparagraph 43(1)(i.3).
- Conservation and protection of fish and fish habitat, and listed aquatic species at risk and their critical habitat, will be managed in accordance with DFO’s regulatory and policy frameworks for the application of the fisheries protection provisions of the Fisheries Act and SARA respectively.
- The Parties will work together in the development of work plans and protocols to improve the efficiency and effectiveness of regulatory reviews of applications and decision-making related to the roles and responsibilities of each Party for:
- Reviewing and assessing of NEBA applications for energy infrastructure for potential impacts to fish and fish habitat including listed aquatic species and their critical habitat under SARA;
- Ensuring that the NEB’s assessment of applications considers the intent and requirements of the NEBA, Fisheries Act, and SARA; and
- Auditing and reporting on the discussions and actions taken under this MOU.
- This MOU will clarify and facilitate the implementation of NEB’s role in the application of DFO’s fisheries protection policies and operational approaches to energy infrastructure.
- Work coordinated under this MOU will enable DFO and NEB to propose regulations that would prescribe the NEB as a person or entity who would be authorized to issue Fisheries Act Authorizations.
- Subsection 36(3) of the Fisheries Act related to deposit of deleterious substances into fish bearing waters is administered by the Minister of the Environment and is outside the scope of this MOU.
4. Work to be coordinated
- The Parties will establish, wherever possible, clear, comprehensive and harmonized policies, standards, guidelines, procedures and/or protocols to guide and measure regulatory performance related to the following activities as they relate to the construction, operation, decommissioning and abandonment of energy infrastructure for:
- Reviewing energy infrastructure applications for potential impacts to fish and fish habitat;
- Developing and improving technical capacity through training and other knowledge transfer mechanisms for assessing impacts to fish and fish habitat including the development of protocols and engagement with Practitioners from DFO Fisheries Protection and Species at Risk Programs;
- Sharing the results of new methods, measures and/or best practices for the protection of fish and fish habitat related to energy infrastructure activities such as construction, operation, decommissioning, and abandonment;
- Verifying compliance with fish and fish habitat protection conditions, including sharing monitoring and/or auditing information obtained from actions taken pursuant to this agreement;
- Communicating with the Major Projects Management Office, and as required with other boards or agencies; and
- Addressing Crown consultation obligations related to energy infrastructure projects into the overall regulatory process.
- The Parties will establish a working group consisting of principal contacts to oversee the development and implementation of the Terms of Reference set out in Annex 1 and the Annual Review under paragraph 6 of the MOU.
- The NEB agrees to:
- Conduct assessments of energy infrastructure applications for potential impacts to fish and fish habitat to ensure that the assessment process considers the intent and requirements of the Fisheries Act, SARA, and their associated regulatory and policy frameworks;
- Further develop their expertise and provide guidance to energy infrastructure applicants for identifying impacts to fish and fish habitat, and include as conditions in its approvals any appropriate measures to avoid, mitigate, or offset those impacts;
- Inform DFO, in a timely manner, of all applications where a Fisheries Act Authorization is anticipated and to recommend for inclusion any appropriate conditions to avoid, mitigate, or offset impacts to fish and fish habitat, and any monitoring and reporting requirements;
- Inform DFO of any non-compliance with a condition in an NEB approval relating to fish and fish habitat;
- Contact DFO for review and advice if potential impacts to a listed aquatic species at risk or their critical habitat are identified in any application;
- Provide an annual report to DFO, describing the:
- actions and decisions made under this MOU including a list of applications and particulars pertaining to it including the status, location, name of applicant, work proposed, anticipated effects on fish and fish habitat, and conditions required; and
- results of NEB monitoring for conformity and compliance, any corrective actions required, and any anticipated results of the corrective actions.
- DFO agrees to:
- Review in a timely manner, all applications referred to DFO that the NEB determines likely to require a Fisheries Act Authorization and issue an authorization where appropriate;
- Inform the NEB, where appropriate, of any review or investigation by DFO of a non-compliance incident under DFO’s jurisdiction that may have occurred at a facility or project regulated by NEB;
- Assist in developing the professional and technical capacity of the NEB by sharing knowledge, electronic training modules and participate in the development of appropriate standards, tools, frameworks and operational guidance materials for the application of the fisheries protection provisions of the Fisheries Act and specific provisions of SARA; and
- Review all applications referred to DFO for potential impacts to a listed aquatic species at risk or its critical habitat as identified through the NEB assessment process or approval according to the relevant provisions of SARA or any related regulations.
5. Financial Arrangements
This MOU will not impose any financial responsibilities on the Parties, except that each will be responsible for their respective costs incurred related to the implementation of the MOU.
6. Annual Review of MOU
The Parties will meet together at least once each fiscal year that this MOU is in force to review its content and assess the effectiveness of activities under this MOU. This meeting will include discussion of improvements to the procedures for referring and assessing applications that have the potential to harm fish or modify fish habitat.
Proposals for changes to this MOU can be made at any time, and appropriate amendments made as may be agreed upon.
7. Legal Liability
This MOU is an expression of the mutual intentions of the Parties and is not legally binding on them or enforceable against them.
It is agreed and acknowledged that any enforcement action under the Fisheries Act or the Species at Risk Act is at the sole discretion of DFO and may be referred to the Attorney General of Canada for consideration for prosecution.
If there is any conflict or inconsistency between this MOU and any obligations under any Act of Parliament, including but not limited to the NEBA, Fisheries Act and SARA, the obligations under the Act of Parliament shall prevail.
8. Principal Contacts
Correspondence relating to this MOU is to be sent to the respective points of contact designated below. Either Party may unilaterally revise its point of contact by written notice to the other Party at any time.
a. For DFO:
Ecosystem Programs Policy
Fisheries and Oceans Canada
200 Kent Street,
Ottawa, Ontario K1A 0E6
Fax: (613) 998-8158
b. For NEB:
Chief Environment Officer
National Energy Board
444 Seventh Avenue SW,
Calgary, AB T2P 0X8
Fax: (403) 299-3110
National Energy Board
444 Seventh Avenue SW,
Calgary, AB T2P 0X8
Fax: (403) 299-3110
9. Term of the MOU
- This MOU will be in force from the date of final signature of both Parties and will remain in effect until cancelled by either Party acting under paragraph 10.
- This MOU may be amended from time to time by mutual written agreement of the Parties under paragraph 6 – Annual Review of MOU.
- This MOU may also be amended, by mutual written agreement, should the NEB be prescribed as a person or entity authorized to grant Authorizations pursuant to a regulation made by the Governor-in-Council under subparagraph 43(1)(i.3) of the Fisheries Act.
10. Provision for Cancellation
This MOU may be canceled unilaterally by either Party by providing six (6) months written notice of the intention to cancel to the other Party or by mutual agreement with any agreed period of notice.
The Parties hereto have signed the Agreement, in counterpart, on the dates indicated below.
Fisheries and Oceans Canada (DFO)
Chair / Chief Executive Officer
National Energy Board (NEB)
Annex 1 - Terms of Reference
The Parties will:
- Convene on a regular basis to draft and manage the implementation of an annual work plan that has been approved by the members of the working group (principal contacts);
- Establish additional sub-working groups as required that include regional and headquarters staff of the NEB and DFO and relevant partners and stakeholders, on the individual elements of the work plan as outlined in paragraph 4;
- Convene operational level meetings as required of regional and headquarters members to address specific concerns and define priorities for the coming year’s work plan;
- Foster exchange and collaboration across the various energy infrastructure and regulatory sectors;
- Review and evaluate the content and effectiveness of activities conducted under this MOU; and
- Prepare and deliver a draft annual report on results achieved under the MOU for approval by the Deputy Minister of DFO and the Chairman/CEO of the NEB. The results will also be identified in the Parties’ Annual Reports, including DFO’s Annual Report to Parliament.
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Canada Energy Regulator
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