Contributed by Robert Lyman © 2019
Robert Lyman is an Ottawa energy policy consultant. He was formerly a public servant for 27 years and a diplomat for 10 years prior to that service.
According to CBC News, the Trudeau government has completed its latest round of consultation with aboriginal groups concerning the proposed issuance of a certificate for the expansion of the Trans Mountain Pipeline, and may make a decision on the certificate by June 18, 2019. Then again, it may not.
If the government decides to approve the certificate, the decision will almost certainly be appealed by a number of groups, including aboriginal communities who will maintain that they have not been sufficiently consulted. I thought that it would be instructive to review the history of the Trans Mountain Expansion project, especially as it relates to consultation with aboriginal groups and communities.
Trans Mountain Pipeline ULC is a company that has operated an oil pipeline system running from Edmonton, Alberta to Burnaby, British Columbia for over 60 years. After extensive preparation, in December 2013 the company submitted an application to the National Energy Board for a certificate of public convenience and necessity to construct an expansion of its existing system. The project would involve twinning of the existing 1,147 km pipeline with about 987 km of new buried pipe along the same right-of-way. It would increase the capacity of the existing system from 300,000 barrels per day to 890,000 barrels per day. The project would also involve the expansion and upgrading of the terminal facilities at Burnaby to allow increased tanker traffic.
Consultations Carried Out by Trans Mountain and the NEB
Starting in May, 2012, Trans Mountain Pipeline conducted an intensive series of consultations and exchanges with stakeholders, governments, landowners, aboriginal groups and the general public. These conversations allowed the company to share project information and hear stakeholder feedback, concerns and questions through face-to-face meetings and social media. These have continued to the present day. A list of the engagement activities is posted on the Trans Mountain Pipeline website and can be seen here:
During the National Energy Board’s initial review of the project from December 2013 to May 2016, the Board heard significant testimony about the consultations that were carried out by Trans Mountain with aboriginal groups. The Board itself sought to obtain information about aboriginal interests and wishes. The NEB’s Reasons for Decision on the project, published in May, 2016, indicated the following:
- Aboriginal groups provided evidence and views through multiple means: through direct discussions with the project sponsor, written and verbal submissions to the NEB, and participation in hearings conducted in aboriginal communities.
- Trans Mountain developed a list of aboriginal communities to engage based on advice received from federal and provincial government departments, the federal Major Projects Management Office, the National Energy Board and the B.C. Oil and Gas Commission. It extended its initial engagement program to include not just communities near the pipeline, but also coastal communities near the marine terminal, and added aboriginal groups when they expressed an interest in the project. The final list included 120 aboriginal groups, two non-land based B.C. Metis groups, and 11 aboriginal associations, councils and tribes.
- Beginning in 2012, Trans Mountain’s consultation activities with aboriginal groups included sending out Project letters, holding open houses, maintaining a project website, providing project update letters, and holding project meetings. More than 24,000 engagement activities were completed.
- Trans Mountain executed 94 agreements, including letters of understanding, including socio-economic and land-use studies, provided capacity funding and integrated cultural assessments with an aggregate value of $36 million.
- In all, Trans Mountain had more than 30,000 “points of contact” with aboriginal communities.
- The National Energy Board began its engagement process by sending letters to 131 potentially affected aboriginal groups and associations.
- Seventy-three aboriginal groups participated as intervenors in the hearings and provided their views and evidence through written submissions to the NEB panel. 35 aboriginal groups provided oral traditional evidence, which the panel heard in Edmonton, Kamloops, Victoria and Calgary.
- The NEB provided participant funding to assist intervenors. About $3 million was made available for participant funding, which was offered to 72 intervenors, with 79 per cent of the funding offered to aboriginal groups.
In its Reasons for Decision, the NEB found that Trans Mountain had the company had “provided numerous opportunities and venues for aboriginal groups to provide information about their interests to the company, and that Trans Mountain considered the information that it received from those aboriginal groups that chose to provide it.”
The Canadian Governments Engagement with Aboriginal Groups
The Government of Canada stated that its consultation with aboriginal groups concerning the project would occur in four phases:
- Phase 1: Initial engagement, from submission of project description to the start of the NEB process;
- Phase 2: NEB hearings, from the start of the NEB review process to the close of the hearing period;
- Phase 3: Post-NEB hearings, from the close of the hearing record to the Governor-in-Council decision on the project; and
- Phase 4: Regulatory permitting, from the Governor-in-Council decision on the project to issuance of departmental regulatory approvals (if required).
The Trudeau government approved the issuance of a certificate for the Trans Mountain Expansion project on November 29, 2016.
On August 30, 2018, the Federal Court of Appeal nullified the Cabinet approval and halted work on the project, ruling that the NEB had not sufficiently considered the impact that the project, and the slight increase in marine shipping associated with it, might have on local marine life – notably, the Southern resident killer whale population. The Court also ruled that the federal government had failed to consult adequately with aboriginal groups in the period after the NEB’s decision and before approving the issuance of a certificate.
The National Energy Board accordingly carried out a “reconsideration” of its initial Reasons for Decision focusing on the marine component, and in its “Reconsideration Decision”, issued in 2019, added 16 more conditions to the certificate. In carrying out this review, the NEB heard 52 indigenous intervenors out of a total of 118 intervenors, and made special efforts to hear oral traditional evidence.
The Trudeau government appointed former Supreme Court Justice Frank Iacobucci to carry out face-to-face consultations with 117 communities. Reportedly, these additional consultations are complete, but the Trudeau government has not announced the results.
The Government of Canada has a public statement on Canada’s approach to consultation and accommodation with aboriginal people. It can be read here:
According to this document, Canada is committed to respecting aboriginal and treaty rights, upholding “the honour of the Crown” and pursuing “reconciliation” objectives as part of its day to day business. A duty to consult is present where “a proposed Crown activity or decision may have an adverse impact on potential or established aboriginal or treaty rights”. Meaningful consultation always includes the consideration of “accommodation”, but accommodation is not guaranteed, and nowhere in the policy does it state that aboriginal groups have the right to veto any and all economic developments that occur anywhere near their traditional lands.
The concepts of “honour of the Crown” and “reconciliation”, however, are open-ended. As recently practiced by the federal government, they imply granting aboriginals exceptional, potentially open-ended, power to delay and/or block all energy infrastructure to which some aboriginal groups object. This race-based system of preferences should be a cause for alarm, especially when allied with radical environmentalism.
There appears to be nothing either in policy or the Court’s application of the law that will provide to pipeline proponents a clear answer to the question, “How much consultation is enough?”
At some point, Canadians will have an opportunity politically to say when they have had enough.
Issues related to aboriginal consultation on pipelines and oil sands development often make the public think all indigenous groups are opposed to resource development. In fact, the oil sands is the largest aboriginal employer in Canada. A group of First Nations were investors and supporters of the now-cancelled Northern Gateway project. They saw it as a way to lift their people from on-reserve poverty and provide employment. A large number of First Nations people are opposed to the tanker ban (Bill C-48) and Bill C-69.