DISCUSSION PAPER INDIGENOUS ENGAGEMENT AND CONSULTATION

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1 DISCUSSION PAPER INDIGENOUS ENGAGEMENT AND CONSULTATION TOPIC: Indigenous engagement and consultation. 1 CONTEXT: The National Energy Board (NEB) Modernization Panel (the Panel) has been asked to focus on a number of key issues, including Indigenous engagement and consultation. 2 Specifically, the Panel s review is expected to provide findings and recommendations to the Minister of NRCan in the following areas (from the Panel s Terms of Reference): 1. Enabling early conversations and relationship building between the Government of Canada and Indigenous peoples whose rights and interests could be affected by a specific project under the NEB s mandate; 2. Facilitating ongoing dialogue between the Government of Canada and Indigenous peoples on key matters of interest on projects to inform effective decision-making; 3. Further integrating Indigenous traditional knowledge and information into NEB application and hearing processes; 4. Developing methods to better assess how the interests and rights of Indigenous peoples are respected and balanced against many and varied societal interests in decision-making; and 5. Enhancing the role of Indigenous peoples in monitoring pipeline construction and operations and in developing emergency response plans. To address the five objectives noted above, it is important to understand the context around how Indigenous engagement and consultation has been approached and undertaken for NEB projects in recent years including roles, responsibilities and authorities. This must also be considered within the broader context in which the Government of Canada is now working to uphold and respect Indigenous rights and interests in a way that strengthens reconciliation and relationship-building. The Crown s Duty to Consult, and Where Appropriate, Accommodate Section 35 of Canada s Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. 3 The legal duty of the Crown 4 to consult, and where appropriate, accommodate Aboriginal groups, finds its source in the Honour of the Crown and section 35. It is triggered whenever the Crown contemplates conduct (e.g., a project decision or authorization) that could adversely impact an established or asserted Aboriginal or treaty right. Expectations of the courts on what is required to fulfill this responsibility were first set out in detail in the Haida and Taku River Supreme Court of Canada decisions of 2004, and have been further clarified in subsequent court decisions. 1 While the Panel will use this discussion paper to support and inform its engagement with Indigenous peoples, a separate, dedicated engagement process on this discussion paper itself was not undertaken. 2 For the purposes of this paper, engagement refers to the broader process of ongoing dialogue and relationship building on matters of interest and concern that generally lie outside the context of legal, section 35 Aboriginal or treaty rights. Consultation refers more to the Crown s legal and constitutional duty to consult, in the context of section 35 rights. 3 In this context, Aboriginal peoples refers to the First Nation, Inuit and Métis peoples of Canada. 4 Federally in Canada, the Crown refers to the Crown in Right of Canada and is the legal embodiment of the three branches of governance: executive, legislative and judicial. In the context of Crown consultations, it is shorthand for the executive branch of government and those entities exercising executive authorities. Federal officials that work within line departments which have Crown conduct (e.g., Natural Resources Canada, Fisheries and Oceans Canada, Indigenous and Northern Affairs Canada) generally undertake consultation activities on behalf of the federal Crown.

2 While the term Aboriginal is used in section 35 and has significance with respect to Aboriginal or treaty rights, the term Indigenous peoples has been recently adopted by various organizations and institutions in accordance with terminology in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, UN Declaration, or the Declaration). This is also the term the Panel is using for most of its engagement activities. The UN Declaration was first adopted by the UN in September It contains 46 articles describing the individual and collective rights of Indigenous peoples, taking into account their specific cultural, social and economic circumstances. It also encourages harmonious, cooperative relationships between States and Indigenous peoples based on the principles of equality, partnership, good faith and mutual respect. For a number of years, Canada provided its conditional support for the Declaration. In 2015, Canada announced its support for the Declaration s implementation without qualifications. The Minister of Justice has been tasked by the Prime Minister with leading UNDRIP s implementation for the Government of Canada, and has indicated that this requires an interlocking set of laws, policies, institutions, structures and patterns of relations. She has also clarified that a principles-based approach is required, acknowledging the centrality of the Honour of the Crown in all processes. In this context, under its Terms of Reference the Panel has been mandated as follows: the Panel shall, in reviewing the NEB structure, role, and mandate, consider the relationship between NEB processes and the Aboriginal and treaty rights of Indigenous peoples, as well as the relationship between NEB processes and the principles outlined in the UNDRIP.. Current and Recent Practice: The Crown s Approach to Fulfilling the Duty to Consult on NEB-Regulated Projects In recent years, the federal Crown has relied on the NEB process, to the extent possible, to fulfill its duty to consult Indigenous groups. This approach is consistent with existing consultation and accommodation guidance for federal officials, 5 and has been done as a way of leveraging environmental assessment and regulatory processes to avoid and mitigate potential project impacts, including impacts on Indigenous rights and interests. The extent to which the NEB process is relied on by the Crown for consultation or accommodation has depended on the nature of a proposed project or authorization being sought. For major pipeline projects regulated under section 52 of the National Energy Board Act (NEB Act) or transmission lines regulated under section of the NEB Act, the Governor in Council (GIC) 6 has final decision making authority. 7 In these instances, the Crown has on some projects undertaken direct consultation at specific points in the process, in advance of a GIC decision. For projects regulated under section 58 of the NEB Act for which the NEB makes the decision (e.g., proposed pipeline projects less than 40 km in length, including extensions or replacements) the Crown generally relies entirely, or almost entirely, on the NEB process to meet its duty to consult. 5 Consultation and Accommodation Guidelines for Federal Officials (2008, updated in 2011). 6 The Governor in Council is the Governor General of Canada acting by, and with the advice and consent of the federal Cabinet. 7 For more information on decision-making roles for projects, see the discussion paper on this topic. 2 Page

3 Aspects of the NEB process and related requirements that are considered or relied on by the Crown in the context of proposed projects include: Collaboration between federal departments and the NEB to identify Indigenous groups whose rights and interests may be impacted by the proposed project; Engagement between the NEB and Indigenous groups early in the review process to provide information about the NEB, its role and how to participate in the NEB s proceeding; Issuance of participant funding to support Indigenous involvement in the hearing process (written and/or oral); 8 NEB requirements for Indigenous consultation by proponents (e.g., providing information and opportunities to discuss the Project, and identifying concerns, potential impacts and mitigation measures to address impacts); Advising proponents, through the NEB Filing Manual, to integrate local and traditional information and knowledge into the design of the project, where appropriate; 9 Receiving direct evidence, including oral traditional evidence, from Indigenous groups outlining concerns about the project, potential impacts to Indigenous rights and interests, and possible avoidance or mitigation measures to address adverse impacts on these rights and interests; Allowing for the testing of direct evidence (either orally through cross-examination or in writing through information requests); NEB assessment of all the information provided to it (including on potential impacts to Indigenous rights and interests and possible avoidance or mitigation measures) and determination of possible residual impacts on Indigenous rights and interests; The development of enforceable measures to reduce potential impacts to Indigenous rights and interests (via proponent commitments, mandatory conditions and legislative requirements); and If a project is approved and construction proceeds, follow-up monitoring and enforcement by the NEB of regulatory requirements, including project conditions. Consultation-related activities undertaken by the Crown may include: Maintaining an understanding of Indigenous groups whose rights or interests could be impacted by the project and communicating with these groups about the project review and consultation process; Confirming the Crown s List of Indigenous groups who may potentially be impacted by the project early in the review process in consultation with NEB and other federal departments; Tracking of issues raised by Indigenous groups throughout the NEB process, as well as responses to these issues by the NEB, proponent or other parties; In-person meetings with Indigenous groups to gather information on views or concerns with respect to the project, encouraging participation in the NEB process and efforts to establish and strengthen long-term relationships; In some cases, provision of separate participant funding (outside the NEB) to support Indigenous participation in consultations by the Crown; 8 The NEB s Participant Funding Program provides funding to facilitate public participation in certain hearings and environmental assessments of designated projects. For more information on the NEB s Participant Funding Program, see the discussion paper on this topic. 9 See section 3.4 of the NEB s filing manual: 3 Page

4 In-person meetings with Indigenous groups to exchange information, gather feedback on the NEB s project recommendations, and discuss potential Crown considerations on matters that may lie outside the NEB s mandate; Developing a report summarizing the consultation process and potential accommodations In-person meetings with Indigenous groups to gather feedback on Crown consultation and accommodation reports; The sharing of Crown analysis to seek feedback from Indigenous groups; Assessing the adequacy of consultation; The implementation of additional measures, where appropriate, to address potential impacts that are beyond the NEB s mandate to address; and Considering the issues raised and recommendations brought forward within NEB process to inform a GIC decision on a project. Current and Recent Practice: Indigenous Engagement during the Lifecycle of a Federally-Regulated Pipeline As a lifecycle regulator, the NEB is mandated to manage safety and environmental protection objectives at various phases of federally regulated projects under its purview (e.g., design and application, construction, operation and abandonment). 10 If a project is approved, the proponent must comply with conditions and other regulatory requirements (e.g., Onshore Pipeline Regulations, NEB Pipeline Damage Prevention Regulations). In addition, proponents consultation programs are required to continue throughout the life cycle of a project. The NEB verifies and enforces compliance with the use of different tools. Those who have concerns about potential impacts of projects can make those concerns known to the NEB, and the NEB can take remedial actions, as necessary. Beyond these existing provisions, some Indigenous peoples have expressed concerns about their participation and role(s) throughout the life cycle of projects, particularly once NEB hearings have concluded and construction and operations phases begin. On recent pipeline projects (e.g., Kinder Morgan Canada s Trans Mountain Expansion and Enbridge s Line 3 Project), the Government of Canada has announced that it will fund and co-develop Indigenous Advisory and Monitoring Committees with Indigenous communities to report on commitments and observations during construction and operations. However, these committees are being set up on a project-specific basis, and do not exist on most other projects. DISCUSSION QUESTIONS: The questions below seek input on opportunities to further enhance Indigenous engagement, consultation and participation with respect to: (1) reviews of specific pipeline projects before and after a decision has been made; and (2) on a broader, non-project specific level: 1. What are your views on the approach the Government of Canada has taken in recent years to engage and consult Indigenous groups on projects regulated by the NEB? Specifically: a. Early engagement of Indigenous groups prior to a formal environmental assessment and regulatory review process by the NEB; b. Consultations with Indigenous groups on matters that fall both within and outside the NEB s mandate; 10 For more information on safety and environmental protection, see the discussion paper on this topic. 4 Page

5 c. Adequacy of participant funding to support Indigenous groups participation in the overall engagement and consultation process; d. The roles of the NEB and the Crown in considering and addressing potential impacts to Aboriginal or treaty rights on NEB-regulated projects, and how these respective roles are carried out; and e. Ongoing consultation and engagement of Indigenous groups during the construction, operations, and abandonment phases of projects that are approved. 2. How can Indigenous traditional knowledge (including Traditional Ecological Knowledge) and information be further integrated into the NEB application and hearing process? What are the potential benefits and constraints to this integration? 3. How can Canada enhance its approach to Indigenous engagement and consultation to inform decision-making on NEB-regulated projects? a. What should be the role of the NEB? The Government of Canada? Project proponents? Indigenous peoples (e.g., specific groups or communities?) 4. How should the Government of Canada s approach to engaging and consulting Indigenous groups on NEB regulated projects support the Government of Canada s goal of renewing the nation-tonation relationship with Indigenous Peoples and moving towards reconciliation? 5. How can the Government of Canada best consider and address the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples when undertaking efforts to modernize the NEB and when making decisions on whether NEB-regulated projects are in the public interest? 6. What could be done to enhance the involvement of Indigenous peoples in the full life cycle of NEB-regulated projects (e.g., ongoing monitoring of the operation of existing projects, economic development opportunities/participation, or other roles)? 7. What are your views regarding how federal departments and agencies can and should balance and respect the interests and rights of Indigenous peoples with varied societal interests to inform decision-making on NEB-regulated projects? 5 Page