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Crown Consultation and Accommodation Report for the NOVA Gas Transmission Ltd. 2021 System Expansion Project (GH-003-2018)

Prepared by Natural Resources Canada
October 2020

Disclaimers

If there is any inconsistency or ambiguity between this Report and the Canada Energy Regulator Recommendation Report (GH-003-2018), the Canada Energy Regulator Recommendation Report
(GH-003-2018) shall prevail.

This document (Section 9.0) contains confidential third party information that should not be disclosed without prior consultation with the Major Projects Management Office at Natural Resources Canada.

List of Figures and Tables

Figure 1

Location of the Proposed NGTL 2021 System Expansion Project

Table 1

Crown Consultation Phases for the NGTL 2021 System Expansion Project

Table 2

NGTL Engagement with Indigenous Groups on the Proposed NGTL 2021 System Expansion Project

Table 3

Allocation of Canada Energy Regulator Funding to Indigenous Groups

1.0 Introduction and Overview

Canada is committed to advancing reconciliation and renewing its relationship with Indigenous peoples to one based on a recognition of rights, respect, cooperation, and partnership. This commitment places an emphasis on ensuring that the Crown fulfills its duty to consult and, where appropriate, accommodates Indigenous peoples in a manner that is reasonable and meaningful. This includes fostering two-way dialogue in a manner that upholds the Honour of the Crown.

With this commitment in mind, the Crown sought to work with potentially impacted Indigenous groups to better understand how Aboriginal and Treaty rights, whether asserted or established, could potentially be impacted by the proposed NOVA Gas Transmission Ltd. (NGTL) 2021 System Expansion Project (Project). For the Project, the Major Projects Management Office (MPMO) at Natural Resources Canada (NRCan) served as Crown consultation coordinator and relied upon the Canada Energy Regulator (CER; formerly the National Energy Board or NEB) Hearing process, to the extent possible, to fulfil any duty to consult. Through supplementary consultations, the Crown consultation team sought to engage with Indigenous groups to understand the nature and seriousness of any potential outstanding impacts to Indigenous interests not otherwise addressed by Project conditions and proponent commitments. Further, the Crown consultation team sought to discuss with Indigenous groups how any outstanding impacts could reasonably be avoided, mitigated, or accommodated. Following this, NRCan provided an assessment as to whether the Crown’s duty to consult and accommodate, as appropriate, was met. Alberta did not participate in the supplementary consultations for this Project, instead relying on NRCan to properly resource and direct these consultations to meet legislated deadlines to ensure a timely decision.

Canada also consults with Indigenous groups for many other reasons, including statutory, contractual, policy, and good governance, as well as, in order to build effective relationships with Indigenous peoples and work together toward reconciliation. Given the breadth of Canada’s objectives in consulting, the term “Indigenous interests” in this report includes asserted or established Aboriginal or Treaty Rights and title, as well as other interests.

1.1. Purpose of the Crown Consultation and Accommodation Report

This Crown Consultation and Accommodation Report (CCAR), including the Indigenous group-specific annexes and engagement summary and analysis documents, describes the outcome of the Crown’s consultation process with potentially impacted Indigenous groups with respect to the Project. This CCAR was developed based on consideration of all information obtained from the CER; supplemental consultations between the Crown and potentially affected Indigenous groups; and, independent submissions made by Indigenous groups.

This Report includes:

  • Section 1: An overview of the Project and relevant legislation
  • Section 2: The Crown list of potentially impacted Indigenous groups
  • Section 3: An overview of the Crown consultation process
  • Section 4: A summary of consultation activities including procedural concerns
  • Section 5: A summary of findings and substantive concerns raised by Indigenous groups
  • Section 6: The policy-based accommodation measure and CER condition amendments
  • Section 7: Responses to the CER recommendations
  • Section 8: The Crown consultation team assessment and conclusions
  • Section 9: Indigenous group-specific annexes and engagement summary and analysis documents

The CCAR plays an important role in informing the Governor in Council’s (GiC) decision to direct the CER as to whether or not to issue a Certificate of Public Convenience and Necessity (Certificate) authorizing the construction and operation of the Project.

1.2 Project Description and Application

On June 20, 2018, NGTL, a wholly-owned subsidiary of TC Energy Corporation (formerly TransCanada Corporation) filed an application with the CER for approval to construct and operate the NGTL 2021 Project, an expansion to the existing NGTL natural gas pipeline system that spans much of Alberta and parts of British Columbia. In its application, NGTL stated that the expansion is required to alleviate capacity constraints in the NGTL network and help producers get their product to market. Specifically, the Project would transport natural gas from areas of increasing production in northwestern Alberta and northeastern British Columbia to intra-Alberta and export markets. This would allow NGTL to serve both existing and incremental market demand in eastern Alberta and through interconnecting pipelines to export markets. NGTL expects the Project to contribute a total economic impact of $1.2 billion to Alberta’s Gross Domestic Product (GDP) with an annual federal and provincial tax revenue of $8.3 million and $817 million in labour income during construction, and a peak workforce of 2,920.

The $2.3 billion Project consists of the construction of approximately 344 km of new pipeline in eight sections, three compressor station units, and related components and facilities that would extend from Grande Prairie to north of Calgary, Alberta. If approved, the Project would “loop” (add new pipeline parallel or adjacent to existing pipeline) parts of the existing NGTL pipeline system.

Of the 344 km of proposed pipeline, NGTL has stated that approximately 85 per cent (293 km) would run parallel to existing linear disturbances. Of this portion, just less than half would be located within existing NGTL land rights, and the rest would be located along existing linear disturbances. Approximately 15 per cent (51 km) of the proposed pipeline would be new right-of-way (RoW). Overall, approximately 80 per cent of the pipeline would cross provincial Crown lands and the remainder would cross private freehold lands. None of the new pipeline route would cross reserve lands, or federal Crown lands.

Figure 1 shows the location of the proposed NGTL 2021 System Expansion Project.

Location of the Proposed NGTL 2021

Figure 1: Location of the Proposed NGTL 2021 System Expansion Project

1.3 Applicable Legislation

The Project application included an application for a Certificate of Public Convenience and Necessity, filed under Section 52 of the National Energy Board Act (NEB Act), and an application for an exemption order under Section 58 of the NEB Act, together with related authorizations and exemptions. For this Project, the application filed under Section 52 is for the pipeline. Section 52 applications are assessed by the CER after which a recommendation report is provided to the Minister of Natural Resources to deliver to the GiC for decision. The GiC may approve the application, deny the application, or send the matter back to the CER for reconsideration. As a result of recent Federal Court of Appeal decisions, the GiC may also add to or amend the mandatory certificate conditions recommended by the CER.

The application filed under Section 58 is for the temporary infrastructure, three compressor station additions, launcher and receiver facilities for cleaning and inspection, a control valve, and tie-ins. The Commission of the CER will only issue the order under this section should the GiC direct the Commission to issue a certificate. Under the NEB Act, Canada has three months from the release of the CER report to make a decision. Prior to rendering a decision, the Government must complete section 35 (s.35) consultations with potentially impacted Indigenous groups and be satisfied that it has fulfilled its duty to consult.

The Project is also a designated project under the Canadian Environmental Assessment Act, 2012 (CEAA 2012). As a result, an environmental assessment (EA) must be conducted by a responsible authority. The NEB has been designated the responsible authority for conducting EAs on NEB certificate applications. The CER must also adhere to the requirements of the Species at Risk Act (SARA) when considering the Project’s implications for species listed under that Act. Finally, the Project must also be assessed in accordance with the 2016 interim principles for Interim Measures for Major Projects (described further below). The Project, therefore, must be assessed and approved in accordance with the NEB Act, CEAA 2012, SARA, and the Principles.

On February 19, 2020, the Commission of the CER issued its report, determining that the Project is in the public interest and is not likely to cause significant adverse environmental effects and, after mitigation, there would be no significant impacts to Indigenous interests, including s.35 Aboriginal and Treaty rights. This recommendation is subject to a number of conditions. The conditions cover a wide range of matters, including emergency preparedness and response, protection of the environment, consultation with affected Indigenous groups, socio-economic matters, monitoring during and post-construction, and pipeline safety and integrity. The Commission recommended 34 conditions that would attach to the Section 52 Certificate for the Project, and would impose 24 conditions on the Section 58 Order.

Through its application, NGTL advised that, if approved, it intended to start construction on the Project in the third-quarter (Q3) of 2020, so that it could meet the targeted in-service date of April 2021. However, the construction schedule will be adjusted in light of the GiC’s decision in May 2020 to extend the legislated timeline for a decision on the Project to no later than October 19, 2020. This extension provided sufficient time for the Crown to conclude meaningful consultations and meet its duty to consult, in light of the COVID-19 pandemic.

If the GiC accepts the recommendations of the CER and approves the Project, it will be regulated over its lifecycle by the CER, under the relevant legislation, regulations, and instruments issued with respect to the Project.

Due to the timing of NGTL’s application for the Project (June 2018), the Project was subject to the Interim Measures for Major Projects. In January 2016, as part of a longer-term plan to renew the federal environmental assessment process and modernize the NEB, the Government of Canada put in place interim measures. These interim measures include five principles to guide the review process for major projects.

Principle #1: No project proponent will be asked to return to the starting line — project reviews will continue within the current legislative framework and in accordance with treaty provisions, under the auspices of relevant responsible authorities and Northern regulatory boards.

As the Project application was filed prior to the coming into force of the Canadian Energy Regulator Act (CER Act) and the Impact Assessment Act on August 28, 2019, the Project was considered under the NEB Act and CEAA 2012.

Principle #2: Decisions will be based on science, traditional knowledge of Aboriginal peoples and other relevant evidence.

The CER conducted a thorough review of the Project and based its decisions on scientific evidence and Indigenous traditional knowledge.

Principle #3: The views of the public and affected communities will be sought and considered.

The CER conducted a public Hearing for the Project. NRCan also hosted a public survey for the Project, which was posted on its website from March 10 to March 27, 2020, to gather the views of the public. NRCan sent the survey link to all parties of the proceeding and all Indigenous groups on the Crown list. No report was prepared, as only four replies to the survey were received.

Principle #4: Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated.

This CCAR provides an overview of the consultation process for the Project. The Crown worked to meaningfully consult with Indigenous groups from July 2018 to September 2020, and address impacts on Indigenous rights and interests.

Principle #5: Direct and upstream greenhouse gas (GHG) emissions linked to the Project will be assessed.

The CER Recommendation Report contains the Commission’s assessment of direct GHG emissions linked to the construction and operation of the Project (Section 8.6.4.2, pages 192 to 193).

In addition to the views of the Commission, Environment and Climate Change Canada (ECCC) reviewed an Upstream GHG Emissions Assessment, commissioned by NGTL, for the Project (GHG Report). The Upstream GHG Emissions Assessment, along with analysis from ECCC, was sent to Indigenous groups, intervenors in the CER review process, and referenced on the MPMO website. Comments on the Assessment were accepted from August 13 to August 28, 2020. These documents were included in the decision package to the GiC for the Project.

1.4 Assessment of Crown Consultation Team

Through early and sustained consultation with Indigenous groups, both through the CER Hearing process and consultations with the Crown consultation team, the Crown is of the view that there was meaningful dialogue and responsiveness to Indigenous interests on the Project. In addition, the Crown consultation team believes that the supplementary consultation process held between February 2020 and September 2020 has helped to facilitate an improved approach by the proponent in its ongoing engagement with Indigenous groups.

As a result of supplementary consultations, the Crown consultation team proposed that the GiC consider the following as part of its decision to as to whether or not to issue a Certificate of Public Convenience and Necessity authorizing the construction and operation of the Project:

Policy-Based Accommodation Measure – Terrestrial Cumulative Effects Initiative (TCEI):

Expanding the Terrestrial Cumulative Effects Initiative (TCEI) to 16 Indigenous groups that were not eligible for funding under the Trans Mountain Pipeline Expansion (TMX) project to build and strengthen capacity and knowledge of Indigenous groups regarding cumulative effects.

Amendment to CER Condition 6 – Revised Caribou Habitat Restoration and Offset Measures Plan: (CHR&OMP):

Requiring this condition to be more prescriptive about the amount of caribou habitat that would be offset by the proponent in the CHR&OMP (at a ratio of 30:1 of habitat restored: habitat lost, in a manner consistent with the Recovery Strategy for Woodland Caribou, Boreal population). Given the importance of the land which should be selected to offset the impacted habitat, the proponent will be required to consult with the Government of Alberta to identify the most appropriate lands.

Amendment to CER Condition 12 – Construction Monitoring Plan for Indigenous Peoples:

Ensuring Indigenous knowledge is incorporated and Indigenous rights and interests are considered during the construction phase in a manner that is inclusive of, and accountable to, Indigenous peoples.

Amendment to CER Condition 14 – Report on Engagement with Indigenous Peoples:

Putting the onus on NGTL to report that it has asked Indigenous groups about filings and to track this outreach in engagement reports.

Requiring NGTL to provide capacity funding to Indigenous groups, within reason, that are interested in reviewing the filings.

Amendment to CER Condition 27 – Post-construction Monitoring Plan for Indigenous Peoples:

Ensuring Indigenous knowledge is incorporated and Indigenous rights and interests are considered during the post-construction phase in a manner that is inclusive of, and accountable to, Indigenous peoples.

Amendment to CER Condition 31 – Caribou Habitat Restoration Implementation Report and Status Update:

Requiring NGTL to include information on the length of time anticipated for the restored habitat to become fully functional in the quantitative assessment included in its Caribou Habitat Restoration Implementation Report and Status Update.

Addition of a New CER Condition: Condition 35 – Indigenous Working Group for the Little Smoky Caribou Range:

Requiring NGTL to seek to establish an Indigenous Working Group for the Little Smoky Caribou Range for the purpose of collaborative finalization of the CHR&OMP and related detailed planning concerning restoration, access management, offsets, and monitoring measures, and for the development of other filings relating to caribou, including ensuring the collection and incorporation of caribou-specific Indigenous knowledge. The condition also requires NGTL to report on how the incorporation of cultural ceremonies was included in the filing for this condition.

These issues are discussed further in Sections 5 and 6 of the CCAR.

2.0 Potentially Impacted Indigenous Groups

The Government of Canada has a duty to consult and accommodate, as appropriate, Indigenous groups where the Crown contemplates conduct that might adversely affect asserted or established Aboriginal or Treaty rights recognized under section 35 of the Constitution Act, 1982.

In making the decision to consult a particular group, Canada is not recognizing that the right or title asserted is established. Rather, the Crown is only recognizing that, at a minimum, the group has a potential Aboriginal or Treaty right which could potentially be adversely affected by the Project. It is important to note that consultations and the consultation process are not rights recognition or rights-determining processes.

For this Project, in addition to consultations, the Crown consultation team engaged with certain Indigenous groups to seek additional information to clarify whether there could be a legal duty to consult in respect of the Project. Where sufficient information to conclude that there was no duty to consult, the Crown nonetheless continued to engage groups on a policy basis to understand their Project related interests in the spirit of reconciliation and with a view to build positive relationships and make informed decisions.

2.1 Development of the Crown List

The Crown list for this Project refers to the Indigenous groups to which the Crown has a legal duty to consult and those Indigenous groups that were engaged on a policy basis. The Crown consultation team considered the following criteria in order to identify Indigenous groups that may have s.35 rights that could be impacted by the proposed Project:

  • If and when an Indigenous group asked to be included in Crown consultations on the Project.
  • Boundaries of traditional territories and intersections between traditional territories and the Project right-of-way.
  • Information from other government departments regarding recent interactions with the Indigenous communities or previous commitments to consult on behalf of the Crown.
  • Affiliations between communities, including historic linkages between communities, and the extent to which affiliations between communities with different proximities to the RoW could impact the rights and interests of more distant groups.
  • Involvement in the CER process demonstrates concern regarding the impact of a given Project.
  • Engagement with the proponent can help the Crown better understand community concerns, asserted rights, and Indigenous interests in the Project.
  • Asserted or established authority of an Indigenous group to speak on behalf of s.35 rights-holders.

In June 2018, the Crown consultation team identified forty-two (42) potentially impacted Indigenous groups for the purposes of Crown consultation, based on information obtained from the CER, Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), and the proponent. Additional Indigenous groups were added to the Crown list as more information became available.

Through the development of the Crown list for the Project, the Crown consultation team determined that it did not have a legal duty to consult with four Indigenous groups. However, the Crown consultation team continued to meet and engage with these groups and obtain information about potential impacts of the Project, in the spirit of reconciliation and with a view to building positive relationships. The Crown consultation team remained open to revising its analysis on these groups, based on any new information obtained.

The final Crown list for this project includes forty-eight (48) Indigenous groups:

  1. Alexander First Nation
  2. Alexis Nakota Sioux Nation
  3. Apetokosan Nation (Kelly Lake Métis Settlement Society)
  4. Aseniwuche Winewak Nation
  5. Blood Tribe
  6. Cadotte Lake Métis
  7. Driftpile Cree Nation
  8. Duncan’s First Nation
  9. East Prairie Metis Settlement
  10. Enoch Cree Nation #440
  11. Ermineskin Cree Nation
  12. Foothills First Nation
  13. Foothills Ojibway First Nation (A)
  14. Gift Lake Metis Settlement
  15. Lac Ste. Anne Métis (Gunn Métis Local #55)
  16. Horse Lake First Nation
  17. Kapawe’no First Nation
  18. Kehewin Cree Nation
  19. Kelly Lake Cree Nation
  20. Kelly Lake First Nation
  21. Ktunaxa Nation
  22. Louis Bull Tribe
  23. Métis Nation of Alberta
  24. Michel First Nation (A)
  25. Montana First Nation
  26. Mountain Cree (Smallboy) Camp (A)
  27. Mountain Métis Nation Association
  28. Nakcowinewak Nation of Canada (A)
  29. Nose Creek Community
  30. O’Chiese First Nation
  31. Papaschase First Nation (B)
  32. Paul First Nation
  33. Peavine Metis Settlement
  34. Piikani Nation
  35. Saddle Lake Cree Nation
  36. Samson Cree Nation
  37. Sawridge First Nation
  38. Siksika Nation
  39. Stoney Nakoda Nations – Bearspaw First Nation
  40. Stoney Nakoda Nations – Chiniki First Nation
  41. Stoney Nakoda Nations – Wesley First Nation
  42. Sturgeon Lake Cree Nation
  43. Sucker Cree First Nation
  44. Sunchild First Nation
  45. Swan River First Nation
  46. Tsuut’ina Nation
  47. Whitefish (Goodfish) Lake First Nation #128
  48. Whitefish Lake First Nation #459
  1. The Crown consultation team determined that it did not have a legal duty to consult with this Indigenous group. However, the Crown consultation team continued to meet and engage with this group and obtain information about potential impacts of the Project on the group’s interests, as a matter of good public policy, in the spirit of reconciliation, and with a view to building positive relationships.
  2. In the context of litigation, Canada has taken the position that the Papaschase First Nation is not a band as defined by the Indian Act. Documents used in the past by NRCan erroneously relied on template language to refer to the Papaschase First Nation as a band as defined by the Indian Act. Various facts remain in dispute pending the resolution of current litigation, and Canada has made the decision to consult on this Project, on a policy basis and understanding that the consultation process is not a rights-determination process.

2.2 Preliminary Assessment of Strength of Claim and Project Impacts

Early in the consultation process, the Crown consultation team conducted a preliminary impact analysis for each Indigenous group on the draft Crown list. This helped to better understand the nature and extent of their rights, and the extent to which the Project could impact each group. For each Indigenous group, the preliminary impacts analysis considered the following:

  • the strength of the Indigenous group’s claim to Aboriginal rights or title that may be adversely affected by the proposed Project; and,
  • the potential magnitude of Project-related impacts to those s.35 rights.

The preliminary impacts analysis informed the initial funding offered to each Indigenous group and the Crown’s preliminary understanding of rights and potential impacts to rights. The Crown consultation team remained flexible in its approach to consultations by tailoring the process, to the extent possible, to be responsive to each Indigenous group. In addition, after the initial funding offers, the Crown consultation team provided additional funding to Indigenous groups, when requested and within reason, regardless of the results of the potential impact analysis conducted.

2.3 Natural Resources Canada Participant Funding

The NRCan Participant Funding Program (PFP) is designed to facilitate the meaningful participation of Indigenous peoples in consultation and engagement activities with the federal Crown. This funding is in addition to and separate from the CER’s participant funding program which offered up to $80 000 per group to support the participation of Indigenous peoples in the CER Hearing process for the Project.

NRCan designed its PFP program to be flexible and responsive to the needs of Indigenous participants, including through the following measures:

  • Thirty per cent of funding (or up to ninety per cent, where requested) was available up-front to reduce the administrative burden on Indigenous groups allowing them to maximize participation and input into the process;
  • Eligible expenses incurred by Indigenous groups from June 3, 2019 could be covered under the program, irrespective of the date of application for participant funding; and,
  • NRCan remained open to increase funding offers on request, to support consultation activities, as necessary.

NRCan offered approximately $1,000,000 through its PFP to Indigenous groups. Participant funding offers and application forms were initially sent to Indigenous groups in June 2019. The final NRCan PFP offers ranged from $12,000 to $67,924 per Indigenous group. It should be noted that NRCan’s PFP funding was provided to the four engage-only groups as well to facilitate their engagement with the Crown consultation team.

3.0 Overview of the Crown Consultation Process

The CER is the independent expert regulator, whose mandate includes making decisions and recommendations on energy projects that fall under federal jurisdiction. The CER possesses the necessary technical, engineering, and economic expertise to assess proposed energy projects as well as the necessary authorities to regulate approved projects. The application for the Project was assessed, and if approved, the Project will be regulated by the CER over its lifecycle.

The Crown relied on the CER assessment of the Project to inform the Crown consultation process and fulfill the Crown’s duty to consult, to the extent possible. The Crown confirmed its reliance on the CER process and general approach to consultations in letters to potentially impacted Indigenous groups dated July 3, 2018 and April 1, 2019.

3.1 Crown Consultation Approach

The Crown consultation team undertook its consultation efforts with Indigenous peoples with a number of objectives, including:

  • supporting the Government’s commitment to reconciliation and renewed relationships with Indigenous peoples;
  • ensuring the Crown’s duty to consult and, as appropriate, accommodate was met; and,
  • fostering informed and sound decision-making for the Project.

While developing the consultation objectives and approach for the Project, the Crown consultation team also considered the views of Indigenous groups, in addition to recent jurisprudence, such as guidance from the 2018 Federal Court of Appeal Tsleil Waututh Nation (TWN) decision addressing ways in which to carry out meaningful and responsive two-way dialogue.

The Crown’s consultation approach for the Project was finalized in March 2019 and was posted publicly on the CER record on April 18, 2019. The Crown also shared the consultation approach with potentially impacted Indigenous groups by letters dated July 3, 2018 and April 1, 2019.

The approach noted the Crown would:

  • Consult in a way that is fully consistent with meeting Canada’s obligations under section 35 of the Constitution Act, 1982 and the Government’s commitments to advance reconciliation with Indigenous peoples;
  • Engage in substantive, meaningful two-way dialogue in order to fully understand concerns raised and the nature and seriousness of potential impacts on rights and to work collaboratively to identify and provide accommodations, where appropriate; and,
  • Be flexible in tailoring consultation approaches, to the extent possible, in a way that is responsive to the potential impacts and capacities of each group, and to the known concerns with the Project. This includes following any signed consultation protocol agreements with Indigenous peoples, to the extent possible.

3.2 Revised Consultation Approach and Timelines due to COVID-19

On March 16, 2020, the Crown consultation team wrote to all Indigenous groups on the Crown list to provide information on the Crown’s response to the COVID-19 pandemic. The revised approach included meeting virtually using teleconference and video conference, rather than ‘in-person’ meetings. This allowed the Indigenous groups and the Crown consultation team to proceed with the consultation process, while following key health advice to limit the spread of COVID-19. The letter further affirmed the willingness and interest of the Crown consultation team to work with Indigenous groups to find alternative ways to meet during the global pandemic, as possible and reasonable. To ensure this was a viable option, NRCan offered additional funding for Indigenous groups that advised of technical limitations. Following this, one Indigenous group sought funding for technical support.

The Crown consultation team followed up with Indigenous groups through phone calls and emails, following its letter of March 16, 2020, to ascertain groups’ capacity and interest in participating in consultations through alternative means (videoconference, teleconference, or in writing). The Crown consultation team again offered to discuss issues Indigenous groups may face, in terms of capacity to consult through these alternative means.

In a letter to Indigenous groups dated May 19, 2020, the Minister of Natural Resources Canada, the Honourable Seamus O’Regan, advised that the Government’s decision timeline on the Project had been extended from May 19, 2020 to no later than October 19, 2020, to ensure that the duty to consult with Indigenous groups could be meaningfully fulfilled in light of the impacts of the COVID-19 pandemic on Indigenous communities.

Of the 48 groups identified on the Crown list, 40 Indigenous groups indicated that they remained available to meet with the Crown consultation team through alternative means, such as videoconference and teleconference. As the consultation process advanced, some groups indicated that working remotely at home created logistical and practical complications in the review of information and the opportunity to collaborate effectively with colleagues and leadership. In response to this, the Crown consultation team helped in reviewing and understanding documents, in particular the CER Recommendation Report, and remained open to holding as many meetings as needed to address this procedural concern. Ultimately, the Crown consultation team was able to connect with 46 Indigenous groups while two Indigenous groups remained unresponsive or unavailable, although every group was contacted by phone and email, multiple times.

3.3 Crown Consultations - Phases

The Crown consultation process was structured to fit into three broad phases, in alignment with the CER Hearing process. The Crown consultation team performed early outreach to potentially impacted Indigenous groups in Phase I, and participated in the CER Hearings during Phase II while meeting directly with interested groups.

An overview of the key steps within each of the phases of the Crown’s consultation follows and can be found in Table 3.

Phase I: Prior to the CER Hearing Order

Phase I of the consultation process took place from approximately February to December 2018.

Phase I started with the proponent’s initial Indigenous engagement on the Project, prior to the filing of the Project application. Through this initial phase, potentially impacted Indigenous groups were provided details of the Project, as well as information on how to participate in the CER Hearing process.

Alongside this, NRCan began communicating directly with potentially impacted Indigenous groups during this phase.

Phase II: CER Hearing Process

The second phase of the consultation process took place from December 2018 to February 2020.

Phase II began when the CER formally commenced its review of the Project, by issuing its completeness determination and Hearing Order for the Project. This phase continued throughout the duration of the CER Hearing process and ended with the release of the CER Report in February 2020.

The Crown consultation team began to conduct introductory meetings with potentially impacted Indigenous groups in May 2019, nine months prior to the release of the CER Report, in order to provide Indigenous groups with additional time to express interests and concerns on the Project.

Phase III: Post-CER Report

The CER issued its Recommendation Report on the Project on February 19, 2020, and this marked the start of Phase III of the Crown consultation process. Phase III was concluded with the release of the decision of the GiC on the Project.

Through the Phase III Crown consultations, the Crown consultation team worked with Indigenous groups to better understand the outstanding impacts of the proposed Project on Indigenous interests. The Crown consultation team and Indigenous groups discussed proposed or potential mitigation and accommodation measures, and potential condition amendments that could address outstanding impacts to rights.

As part of this phase, NRCan facilitated a whole-of-government approach to consultation, working with other relevant federal authorities, most notably ECCC, to leverage federal expertise and connect Indigenous groups with any relevant programs across the Government of Canada. To this effect, NRCan relied on the Project Agreement with the CER, ECCC, and CIRNAC, which noted the roles and responsibilities of each organization for the review of the Project.

Table 1: Crown Consultation Phases
  Phase I Consultations
(February 2018 - December 2018)
February 27, 2018 CER receives project description from NGTL
June 1, 2018 CER notifies Indigenous groups with Project Description
June 20, 2018 NGTL filed its application for the Project with the CER
July 1, 2018 Consultation and engagement with Indigenous groups:
CCT communicated with potentially impacted Indigenous groups to inform them of the Project
July 5, 2018 The CER issued a Notice of Public Hearing and Application to Participate
December 4, 2018 CER issued the Hearing Order for the Project
  Phase II Consultations
(December 2018 - February 2020)
January 24, 2019 CER convened a one-day conference
February 12, 2019 CER releases draft conditions
April 1, 2019 Consultation and engagement with Indigenous groups:
CCT sent additional correspondence to Indigenous groups, to share the Crown consultation approach and invite groups to meet directly to discuss s.35 Aboriginal and Treaty rights
May 1, 2019 Consultation and engagement with Indigenous groups:
CCT began conducting introductory meetings with potentially impacted Indigenous groups
July 30, 2019 CER releases draft conditions (second time)
November 13, 2019 CER Hearing record for the review of the Project closes
Fall 2019 Consultation and engagement with Indigenous groups:
CCT begins regular engagement with NGTL
February 7, 2020 Consultation and engagement with Indigenous groups:
CCT sends the preliminary draft annexes/engagement summary and analysis documents to Indigenous groups
  Phase III Consultations
(February 2020 - August 2020)
February 19, 2020 CER releases Recommendation Report, marking the start of Phase III consultations
March 10-11, 2020 Consultation and engagement with Indigenous groups:
CER information sessions (organized by NRCan)
March 16, 2020 Consultation and engagement with Indigenous groups:
CCT seeks alternative ways to meaningfully consult with Indigenous groups, in light of COVID-19
May 19, 2020 GiC extends timeline for a GiC decision to no later than October 19, 2020, in light of COVID-19
June 8, 2020 Consultation and engagement with Indigenous groups:
CCT provided Indigenous groups with a revised draft annex/engagement summary and analysis document
July 15, 2020 Consultation and engagement with Indigenous groups:
CCT writes to unresponsive Indigenous groups
August 14, 2020 Due date for Indigenous groups to submit an independent submission (subsequently extended)
August 21, 2020 Extended due date for independent submissions
August 28, 2020 End of Crown consultation period

4.0 Summary of Consultation Activities

The proponent’s engagement with Indigenous peoples is a critical part of the development of a proposed project and a key matter for consideration in the regulatory process. This is because the proponent is often in the best position to respond to concerns about project design and development. Timely, accessible, and inclusive engagement between a proponent and Indigenous peoples can help to facilitate the exchange of information and provide important opportunities for improvement and collaboration. Early engagement further allows for discussions on how Indigenous concerns can be addressed through project design, and to develop and discuss measures to avoid, reduce, or mitigate the effects a project may have on the rights and interests of Indigenous peoples.

4.1 Engagement by NGTL with Indigenous Groups on the Project

In accordance with the CER Filing Manual, NGTL was required to identify, engage, and consult with potentially impacted Indigenous groups prior to filing an application for the Project. NGTL was also required to report to the CER on these activities, and provide a description of any issues or concerns raised by Indigenous groups as part of its application. In the CER Recommendation Report, the Commission provided its view that NGTL had designed and implemented appropriate engagement activities that met the requirements and expectations set out in the CER Filing Manual. The Commission’s understanding and views on the various steps taken by NGTL to engage potentially impacted Indigenous peoples on the Project is outlined in Section 7.1, pages 76-79, and Section 7.6.1, pages 135-137 of the CER Recommendation Report.

NGTL indicated that preliminary engagement with Indigenous peoples on the Project began in August 2017 regarding specific sections of the Project (Grande Prairie Mainline Loop No. 2 & 3 – the McLeod River Connection and Elmworth sections). Broader engagement with Indigenous peoples began in February 2018 when NRCan informed NGTL of additional Indigenous groups considered potentially impacted by the Project. Following the release of the CER Report, NGTL continued to engage impacted Indigenous groups usually through direct meetings. NGTL also attended two CER information sessions organized by the NRCan, following the release of the CER Recommendation Report. These sessions took place on March 10, 2020 in Edmonton and March 11, 2020 in Calgary. At these sessions, NGTL provided more information about potential economic opportunities from NGTL, including contracting and procurement possibilities.

The Crown consultation team understands that NGTL has stated that, throughout its engagement process on the Project, it has worked with many Indigenous groups to develop Project-specific work plans and obtain information regarding Project impacts and concerns. In addition, the Crown consultation team understands that NGTL is continuing to engage Indigenous groups to explore ways it can improve relationships, its approach to engagement, and how it can work differently with groups where it has business activities in traditional territories for this Project and future projects. NGTL has stated that its goal is to establish collaborative frameworks with Indigenous groups that respects rights, stewardship values, and policies that achieve community support for its ongoing business activities. Furthermore, NGTL notified the Crown consultation team that it is pursuing relationship agreements with specific Indigenous groups through its Relationship Enhancement Initiative (REI). Under this initiative, parties will work together in a collaborative way, establish a framework for ongoing communication, a mechanism to explore community led opportunities and benefits, and ensure the parties have a process in place so that engagement happens in a predictable and timely way.

NRCan emphasized to NGTL the importance of engaging directly with Indigenous groups prior to, during, and post-construction for this Project. If the Project is ultimately approved by the GiC, NGTL would be required to continue to engage with Indigenous groups during the lifecycle of the Project in accordance with the proponent commitments, Project conditions, and other regulatory requirements.

Table 2 provides an overview of engagement activities by NGTL with Indigenous groups on the Project.

Table 2: NGTL Engagement with Indigenous Groups on the Proposed NGTL 2021 Project
Date Engagement
August 2017 NGTL started preliminary engagement with Indigenous peoples regarding specific sections of the Project (Grande Prairie Mainline Loop No. 2 & 3 – the McLeod River Connection and the Elmworth sections).
February 2018 NGTL started broader engagement with Indigenous peoples (after receiving information from NRCan).
August 2019
  • NGTL provided Indigenous groups with information related to an updated Project route and right-of-way (RoW).
  • NGTL informed Indigenous groups of ongoing Project planning related to the evaluation of suitable water sources and provided relevant maps.
January 2020 NGTL informed Indigenous groups of the workforce accommodation plans for the Project, including plans to utilize existing workforce and commercially available accommodation, expand existing workforce accommodations, and construct temporary workforce accommodation in varying capacities.
March 2020
  • NGTL attended two CER information sessions organized by NRCan, following the release of the CER Recommendation Report.
  • NGTL modified its engagement plan in response to the COVID-19 pandemic, offering to engage with Indigenous groups virtually wherever possible, and to advance various Traditional Knowledge (TK) and capacity funding agreements.
  • NGTL sent a survey to Indigenous groups requesting input into the Project’s Aboriginal Construction Participation Program (ACPP).
April 2020 NGTL informed Indigenous groups about local field assistant opportunities on biophysical field surveys and environmental monitoring programs.
June 2020 NGTL informed Indigenous groups about updated workforce accommodation plans for the Project, including location, workforce capacity and accommodation, and construction dates. NGTL also indicated that it would have a Temporary Workforce Accommodation Management Plan.
August 2020
  • NGTL provided Indigenous groups with a draft copy of Condition 17- Emergency Management Continuing Education Program for input.
  • NGTL provided Indigenous groups with redacted versions of the site-specific Emergency Response Plans for specifc sites, as per Condition 4 of the CER Recommendation Report.
  • NGTL provided the GoC and Indigenous groups with a revised Caribou Habitat Protection and Offset Measures Plan (CHR&OMP).

4.2 Indigenous Engagement through the CER Hearing Process

Through the CER Hearing process, potentially impacted Indigenous groups were provided with opportunities to:

  • learn about the Project and its potential impacts;
  • evaluate the Project in relation to their asserted or established rights and Indigenous interests;
  • communicate their concerns directly to the CER and the Crown; and,
  • raise potential mitigation and accommodation measures.

This section provides additional details on how Indigenous groups were engaged through the various steps in the CER Hearing process through Phases I and II of the Crown consultation process.

4.2.1 Indigenous Intervenors in the CER Hearing Process

The CER started its Early Indigenous Engagement (EIE) activities for the Project, shortly after it received an initial Project Description from NGTL on February 27, 2018. The Project Description included a general overview of the proposed Project and a list of Indigenous groups that the proponent had identified for its engagement program. The CER’s EIE is designed to, among other things, provide proactive contacts and information for Indigenous groups that may be affected by a proposed Project. Through its EIE, the CER also provides general information about its Hearing process and PFP.

On June 1, 2018, the CER sent letters to 49 Indigenous groups identified by the proponent and the CER through early engagement and EIE activities. The letter shared an outline of the Project and summarized the role of the CER as the federal regulator of pipelines, as well as noting that participant funding will be available for the Hearing process. The letter also included key information on the participation process, including participating as an “intervenor” or a “commenter”. An “intervenor” status allows for participation in all hearing steps (e.g., ask information requests, provide oral and written arguments) and (ii) “commenter” status only allows for a participant to submit a letter of comment to the CER, setting out information and views on a proposed project.

Twenty-one (21) Indigenous groups ultimately applied for and were granted intervenor status for the CER Hearing process. Two Indigenous intervenors, Cadotte Lake Métis and Duncan’s First Nation, subsequently withdrew from the CER Hearing process on August 20, 2019. On October 31, 2019, approximately two weeks prior to the close of the Hearing record, Michel First Nation applied to provide a letter of comment. The Commission denied this request, following a comment process, due to the late filing of the request.

4.2.2 CER Participant Funding Program

The CER administers a participant funding program that is independent of the hearing process and separate from NRCan’s PFP. The CER’s PFP provides financial assistance to individuals, Indigenous peoples, landowners, and non-industry not-for-profit groups to facilitate participation in certain project hearings and environmental assessments of designated projects.

For the Project, the CER received 21 applications for funding, and awarded a total of $1,588,830. Indigenous intervenor accounted for 100 per cent of the funding awarded.

Table 3 sets out the funding awarded by the CER to Indigenous groups on the Project.

Table 3: Allocation of CER Funding to Indigenous Groups
Applicant Amount Awarded
Alexis Nakota Sioux Nation $80,000
Bearspaw First Nation $80,000
Blood Tribe $80,000
Cadotte Lake Métis Local #1994 $80,000
Chiniki First Nation $80,000
Driftpile Cree Nation $75,630
Duncan’s First Nation $66,280
Ermineskin Cree Nation $80,000
Foothills First Nation $79,800
Horse Lake First Nation $65,475
Métis Nation of Alberta, Region 3 $79,655
Nekaneet Cree Nation $77,460
O’Chiese First Nation $80,000
Piikani Nation $80,000
Saddle Lake Cree Nation $79,420
Samson Cree Nation $80,000
Siksika Nation $80,000
Sturgeon Lake Cree Nation $25,110
Tsuut’ina Nation $80,000
Wesley First Nation $80,000
Whitefish (Goodfish) Lake First Nation #128 $80,000
Total $1,588,830

4.2.3 CER Hearing Process

NGTL filed its application for the Project with the CER on June 20, 2018.

On July 5, 2018, the CER issued a Notice of Public Hearing and Application to Participate. Interested parties, including potentially impacted Indigenous groups, were invited to apply to participate in the CER Hearing process for the Project by August 17, 2018. These parties were also invited to file comments on the preliminary list of issues, and on the factors and scope of factors for the environmental assessment being considered under CEAA 2012.

The CER started its review of the Project on December 4, 2018, and subsequently issued a letter with the Hearing Order (GH-003-2018) for the Project. The Hearing Order detailed the steps in the Hearing process and the schedule for the review. In its letter of December, 4, 2018, the CER advised that the list of issues had been modified to include reference to potential impacts on the economic interests of communities of Indigenous peoples, and potential impacts on Indigenous and Treaty rights.

4.2.4 CER Procedural Conference for Indigenous Intervenors

In response to specific requests, the CER convened a one-day conference on January 24, 2019, to obtain the views and perspectives of Indigenous intervenors on the design of the Hearing process, with a view to enhance meaningful participation of Indigenous peoples. The procedural conference was open to all parties to attend and was facilitated by a third party. In total, 17 Indigenous groups, NGTL, and NRCan (on behalf of the Crown) attended the procedural conference.

After reviewing the final Conference Summary Report (prepared by the CER and reviewed by participants), the CER released Procedural Update No. 1, which further modified the Hearing schedule and certain steps in the Hearing process. These modifications were based on the direct feedback of Indigenous intervenors. A summary of all the changes can be found in Section 2.4.3 on page 23 of the CER Recommendation Report.

4.2.5 Steps in the CER Hearing Process

The CER conducted its public Hearing process from December 4, 2018 to November 13, 2019. The process included both written and oral components. All oral portions of the CER Hearing process were open to the public. Through the CER Hearing process, potentially impacted or interested parties, including Indigenous intervenors, were provided with a number of participation opportunities including:

  • providing written evidence and making submissions on the public record regarding the Project’s potential impacts, including to rights;
  • obtaining information from the proponent by asking questions through formal information requests, to which written responses were provided;
  • providing oral traditional evidence;
  • participating in oral cross-examination to obtain additional information from NGTL and other parties to the Hearing process, including NRCan and ECCC;
  • reviewing and providing comments on two rounds of draft conditions (Certificate and Order); and,
  • providing oral and written final arguments to the CER.

The Commission released draft conditions for the Project in February 2019 and July 2019 to solicit comments, including from Indigenous groups.

Both NRCan and ECCC participated as intervenors for this Project and submitted information requests. NRCan also provided comments to the CER on the draft conditions to ensure that potential areas of impact on Indigenous rights were mitigated. The Commission considered the input received and subsequently made several amendments to the proposed conditions for the Project, including to reflect NRCan’s input.

4.2.6 Transition of the NEB to the CER

On August 28, 2019, the Canadian Energy Regulator Act (CER Act) came into force, through which the former NEB was replaced with the CER. In advance of this date, a letter was sent to all parties to the CER Hearing process to note that the Project would continue to be reviewed by the Commission of the CER under the Interim Principles as noted in the CER Act.

Immediately following the transition to the new CER, one Commission member was replaced with a new commissioner in accordance with the relevant legislation. Due to this transition, participants to the CER Hearing process had an opportunity to provide comments on revisions to the Hearing timelines and process for the remainder of the CER Hearing process.

4.2.7 CER Recommendation Report

The Commission released its Recommendation Report for the Project on February 19, 2020.

A summary of links to all written and oral evidence and other submissions by Indigenous intervenors on the CER Hearing record is included in the CER Recommendation Report in Section 7.3.5 on pages 88-90.

4.3 Supplemental Crown Consultations

The Crown consultation process was designed to allow the Crown and impacted Indigenous groups to engage in substantive, meaningful two-way dialogue in order to understand concerns raised and the nature and seriousness of potential impacts on s.35 Aboriginal and Treaty rights. The Crown consultation team worked collaboratively with Indigenous groups to identify and provide specific accommodation measures to address outstanding impacts to s.35 rights, where appropriate. Where impacts could not be mitigated or accommodated, the Crown consultation team sought to provide an explanation as to why that was the case.

4.3.1 Consultations with Indigenous Groups through Phases I and II

NRCan, in its role as Crown consultation coordinator, first communicated with potentially impacted Indigenous groups in July 2018, when it wrote to inform that the Crown intended to rely on the CER Hearing process to fulfill the duty to consult with Indigenous groups on the Project. At that time, NRCan encouraged Indigenous groups to apply to participate in the CER process and provided the necessary information.

On April 1, 2019, the NRCan sent additional correspondence to Indigenous groups, to share the Crown consultation approach and invite groups to meet directly to discuss the Project’s potential impacts to s.35 Aboriginal and Treaty rights. NRCan again encouraged Indigenous groups to participate in the ongoing CER process.

The Crown consultation team began to conduct introductory meetings with potentially impacted Indigenous groups in May 2019, nine months prior to the release of the CER Recommendation Report. This was the first time that NRCan, as Crown consultation coordinator, met with impacted Indigenous groups. The Crown consultation team took a novel approach to conduct introductory meetings earlier in the process for the Project, based on lessons learned from past projects, and in order to provide Indigenous groups with additional time to express interests and concerns to the Crown consultation team.

The Crown consultation team continued to conduct introductions and communicate directly with potentially impacted Indigenous groups throughout Phase II to better understand Indigenous concerns about the Project and how the Project could impact s.35 rights. During Phases I and II, the Crown consultation team had already met with 43 Indigenous groups to establish the relationship and begin to understand their concerns.

4.3.2 Consultations following the Release of CER Recommendation Report (Phase III)

Throughout Phase III, the Crown consultation team continued to work with Indigenous groups to better understand the outstanding impacts of the proposed Project on s.35 rights, in light of the findings of the CER Recommendation Report.

Specific discussion points with Indigenous groups varied, however, special attention was given to understanding the CER Report and examining the conditions. The Crown consultation team strived to:

  • ensure that Indigenous groups understood the CER Report and what potential impacts may arise that would not be addressed by the conditions;
  • engage in a meaningful, two-way dialogue;
  • collaborate to better understand Project-related impacts to group-specific Indigenous interests;
  • consult in a manner responsive to the Indigenous group’s individual needs; and,
  • consider accommodation measures to avoid or mitigate impacts, as appropriate.

4.3.3 Information Sessions

In response to concerns raised through past projects about the length and technical nature of the regulator’s Report, NRCan organized two information sessions for Indigenous groups with the CER, following the release of the CER Recommendation Report. The two CER information sessions were held on March 10 and 11, 2020 in Edmonton and Calgary, respectively, and were attended by representatives of the CER, NRCan, NGTL, the province of Alberta (at the Edmonton session only), and 76 Indigenous peoples from 38 communities. At these sessions, Indigenous peoples were provided an opportunity to learn more about the CER Recommendation Report from the CER and to ask questions. Indigenous groups could also obtain information about potential economic opportunities from NGTL – both in the sessions and afterwards in individual meetings (as requested).

On September 23, 2020, the Crown consultation team invited all Indigenous groups on the Crown list to a virtual meeting to discuss the proposed amendments to CER conditions as well as the potential inclusion of a new condition in order to respond to outstanding impacts to rights that had been identified and grappled with throughout the consultation process. This was the first time that a session of this size was held by a Crown consultation team to hear reaction and feedback on proposed condition amendments and new conditions. The Crown consultation team deemed this necessary in order to address concerns, particularly as they pertained to the conditions on caribou. In addition, the Crown consultation team deemed this a meaningful step to enforce its commitment to a transparent and responsive consultation process that respected the principle of a two-way dialogue. Representatives from ECCC also attended and provided the technical background and analysis that was undertaken to support the development of the proposed condition amendments related to caribou.

4.3.4 Provision of Draft Annexes and Engagement Summary and Analysis Documents

Another innovation in the Crown consultation approach for the Project was to provide a preliminary draft of the specific annex (or the engagement summary and analysis document) to each Indigenous group. This was done to support a transparent and meaningful dialogue and ensure groups had sufficient time to review and provide comments.
The first preliminary draft of these documents was sent to Indigenous groups in February 2020 and included a summary of the following:

  • historic and current context;
  • procedural concerns; and,
  • potential impacts and concerns regarding the Project (including any mitigation or accommodation measures recommended by the Indigenous group).

In the letter to Indigenous groups, attaching the preliminary draft annex (or the engagement summary and analysis document), the Crown consultation team confirmed that a subsequent and more comprehensive draft annex (or engagement summary and analysis document) would be prepared for review and comment following the release of the CER Recommendation Report.

In many instances, the Crown consultation team worked directly with Indigenous groups on sections of the draft annex (or the engagement summary and analysis document) to ensure the information it contained accurately represented the views and perspectives of the Indigenous group.

On June 8, 2020, Indigenous groups were provided with a letter accompanied by the group-specific revised draft annex. This version incorporated information from the CER Recommendation Report, information obtained from supplemental Crown consultation meetings, and information received from Indigenous groups during the first round of review. The revised draft annex included all issues raised by Indigenous groups, as understood by the Crown, throughout Phases I to III, and outlined the Crown’s preliminary views as to whether those potential impacts had been mitigated through Project conditions, the proponent’s commitments, or other measures.

The revised annexes (and engagement summary and analysis documents) allowed for detailed discussions between the Crown consultation team and Indigenous group on priority focus areas. These issues related to lifecycle monitoring, cumulative effects, access to Crown land, and caribou. The Crown consultation team noted these concerns and discussed the various accommodation measures and proposed condition amendments, as appropriate, that could be recommended to address the potential impact to s.35 rights.

Indigenous groups were given approximately 10 weeks (until August 14, 2020, but several extensions were granted) to provide comments on the revised draft annex (or engagement summary and analysis document). This was to allow for sufficient time to ensure that comments could be incorporated prior to the finalization and submission of the documents to Cabinet as part of the GiC package, in advance of the Project decision. The June 8 letter also invited Indigenous groups to provide an independent submission prior to August 14, 2020 (subsequently extended to August 28, 2020) that could be provided to Ministers as part of the GiC decision package. The June 8 letter also noted that NRCan aimed to close consultations by August 28, 2020.

On July 15, 2020, the Crown consultation team sent a letter to specific Indigenous groups noting that it had not heard from them, nor had it received additional input or information from them regarding any potential outstanding impacts to rights arising from the proposed Project. In this letter, the Crown consultation team stated that it sought to conclude consultations by August 28, 2020 and that, if by this date no response was received, it would conclude that there were no outstanding impacts to their s.35 rights arising from the proposed Project.

The Crown consultation team continued to meet with potentially impacted Indigenous groups well after the Crown consultations were deemed closed for the Project on August 28, 2020. Subsequent to this, the Crown consultation team made its best efforts to provide any outstanding responses to Indigenous groups, update the record to accurately reflect views, and reminded Indigenous groups of the option to provide an independent submission.

In total, the Crown consultation team held 154 meetings for the Project, with approximately half of them held during Phase III consultations. At the end of consultations, four Indigenous groups informed the Crown consultation team that they did not formally agree to conclude consultations and asked for additional time.

4.4 Crown Approach to Engagement with the Proponent

As Crown consultation coordinator for the Project, NRCan is responsible for undertaking and facilitating the Crown consultation process to ensure that any duty to consult and accommodate owed to Indigenous peoples on the Project is met.

In support of this role, NRCan began regular communications with NGTL (and the parent company TC Energy) in the fall of 2019. The purpose of these communications was to facilitate the sharing of information and encourage the resolution of outstanding issues and concerns that the Crown consultation team heard from Indigenous groups. As a part of this, NRCan sought prior authorization from specific Indigenous groups to disclose information, as appropriate, when bringing forward a specific outstanding issue or concern to NGTL. Through these discussions, NRCan also facilitated the proponent’s direct involvement in Crown consultation meetings with certain Indigenous groups, where it was requested by a group.

During Phase III consultations, NRCan had weekly meetings with NGTL in order to exchange information and discuss concerns, as appropriate. The Crown consultation team took this opportunity to discuss a range of issues concerning Indigenous interests which helped to facilitate an improved approach on behalf of the proponent to consulting and engaging with Indigenous groups on issues of concern.

4.5 Independent Submissions

In addition to the opportunities to submit information through the CER Hearing process or directly to the Crown consultation team, Indigenous groups were offered the opportunity to provide an independent submission for Ministers, as long as it was provided prior to August 14, 2020. NRCan agreed to extend the deadline to August 28, 2020, as additional time was requested by some Indigenous groups. The independent submission could outline any outstanding impacts, concerns, or other views in respect of the Project, the proponent, or the Crown consultation approach. Any input received from impacted Indigenous groups was not edited and was included in the package provided to Ministers and the GiC, together with the CCAR , to inform the decision on the Project. As of September 25, 2020, NRCan received seven independent submissions.

4.6 Procedural Concerns Raised by Indigenous Groups

In meeting its duty to consult, the Crown is required to design a process that is capable of facilitating meaningful Indigenous consultation. This includes ensuring there is reasonable time afforded to Indigenous groups to participate in the process, that there is participant funding in place to facilitate an Indigenous group’s participation, a frequency of meetings, and a reliable process to share information. This ensures that any potential impacts to Indigenous interests are identified by the Indigenous groups and communicated to the Crown consultation team so that they can be grappled with and responded to meaningfully.

Throughout the CER Hearing and supplementary Crown consultation process, many Indigenous groups raised concerns about various aspects of the design and implementation of the consultation process for the Project. An overview of some of the key concerns raised in relation to the proponent’s engagement process, the CER Hearing process, and the Crown’s supplemental consultations is below.

4.6.1 Proponent Engagement with Indigenous Groups

One key theme with regards to procedural concerns related to the timing and scope of the proponent’s engagement process. Specifically, Indigenous groups raised concerns that they should have been engaged earlier in the development of the Project to ensure that their traditional knowledge could meaningfully have influenced Project design, rather than NGTL relying on literature reviews. Indigenous groups expressed regret that the proponent did not have a policy or framework in place that would guide meaningful engagement with Indigenous groups on the Project and other business operations, in general.

Indigenous groups also raised procedural concerns in relation to a perceived lack of timely or adequate funding from NGTL to conduct the studies necessary to reasonably assess impacts to rights. Specific studies identified included Traditional Land and Resource Use (TRLU) studies and Traditional Knowledge studies.

NGTL’s approach to assessing Project impacts was also criticized by some Indigenous groups. These groups argued that the proponent failed to assess impacts of the Project on s.35 rights, rather limiting its analysis to potential impacts on the environment and land users.

4.6.2 CER Hearing Process

Similar to concerns raised with respect to proponent engagement, some Indigenous groups argued that the CER Hearing process focused on potential impacts to environmental and traditional land use, rather than on the impacts to specific Aboriginal or Treaty rights.

A number of Indigenous groups also criticized the CER Hearing process due to its formal nature, perceived rushed timelines, and lack of culturally appropriate protocols and procedures for Indigenous peoples. Specifically, the CER’s decision-making process was raised as a point of concern. Multiple Indigenous peoples sought clarity and assurances as to how the Commission would keep oral Indigenous knowledge confidential, and how it would assess and incorporate Indigenous knowledge and worldviews into the decision.

The CER Recommendation Report includes a description of all the procedural concerns raised by Indigenous peoples in relation to NGTL’s engagement process and the Crown’s consultation and engagement process in Section 7.4.1, pages 91-93. The response of the Commission is set out in Section 7.6.1, pages 135-137. A summary of the issues raised and considered through the CER Hearing process is also set out in chart format in Appendix VII, pages 277-279.

4.6.3 Supplemental Crown Consultations

Some Indigenous groups also raised concerns with respect to the Crown’s reliance on the CER process to satisfy aspects of the duty to consult, arguing that this represented a delegation of the Crown’s duty. In addition to this, some Indigenous groups challenged NRCan’s funding process, stating that the amounts were insufficient and the process otherwise created financial burdens. NRCan considered requests for additional funding, and in most cases was able to come to an agreement on the amount of funding with impacted Indigenous groups and increase the amount of funding offered.

In the group-specific annexes (and engagement summary and analysis documents), the Crown consultation team describes the specific procedural concerns raised by each Indigenous group, together with any proposed measures to address the concerns raised, and the assessment and response of the Crown consultation team. The Crown consultation team’s assessment and response to procedural concerns raised by Indigenous groups took into account the extent to which the concern raised demonstrated an inability for the Indigenous group and Crown to mutually understand the Project, its potential impacts on s.35 rights, or to meaningfully consider potential accommodation measures.

4.6.4 Crown conclusion:

The Crown is of the view that many concerns raised by Indigenous groups were examined during the CER Hearing process through Indigenous groups’ direct engagement with NGTL, and/or their participation in the Hearing process, and/or through their own participation in the regulatory process. To the extent that Indigenous groups’ concerns were not raised or addressed through the Hearing process, the Crown is of the view that any outstanding concerns were capable of being addressed through supplemental Crown consultation in Phase III and/or further direct engagement with NGTL.

5.0 Summary of Findings and Substantive Concerns of Indigenous Groups

On February 19, 2020, the CER Commission released its Recommendation Report for the Project which recommended that the Project be approved and that a Certificate of Public Convenience and Necessity be issued under Section 52 of the NEB Act. In coming to this conclusion, the Commission considered the public interest, defined as being inclusive of all Canadians and referring to a balance of economic, environmental, and social interests that changes as society’s values and preferences evolve over time. The CER was also responsible for conducting the EA which, as required, included an assessment of social and cultural impacts of the Project on Indigenous groups. As required, species at risk issues were also considered as part of the recommendation.

As part of its assessment, the Commission evaluated the sufficiency of NGTL’s consultation with Indigenous peoples. The Commission also considered the views and concerns of Indigenous peoples participating in the Hearing process, the potential impacts on the rights and interests of Indigenous peoples, and proposed measures to avoid or mitigate those impacts. Indigenous groups who did not participate had their views and concerns, including with respect to potential impacts on rights, brought forward through the Indigenous engagement logs that were filed by NGTL on the CER Hearing record.

With respect to impacts on Aboriginal rights and interests, the Commission concluded that there had been adequate consultation and accommodation for the purpose of the Commission’s decision on the Project. The Commission was further of the view that any potential Project impacts on the rights and interests of affected Indigenous peoples, after mitigation, are not likely to be significant and can be successfully addressed. A complete summary of the Commission’s conclusions on s.35 rights can be found in the CER Recommendation Report, Section 7.6.8, pages 146-148.

In the CER Report, the Commission also recommended and imposed a number of conditions in relation to engagement, environmental, economic, and safety matters. The Commission recommended 34 conditions that would attach to the Section 52 Certificate for the Project and, if the Project is to be approved, would impose 24 conditions on the Section 58 Order.

Over the course of the CER Hearing process, the Commission also heard issues and concerns that extended beyond the Commission’s mandate, but that were nonetheless deemed to be of significance to impacted Indigenous groups. The Commission provided six non-binding recommendations for consideration by governments and agencies whose mandates extend to the issues identified. These are outlined in Section 7 of the CCAR.

Summary of Key Impacts on Indigenous Rights and Concerns

This section summarizes the key concerns and potential impacts raised by Indigenous groups through the Crown consultation process for the Project. The Crown consultation team’s understanding of the issues and concerns of Indigenous peoples on the Project was developed based on a review of the CER Report and Hearing record, as well as supplemental consultations with Indigenous groups on the Project. The majority of the issues identified are based on potential Project impacts to s.35 Aboriginal and Treaty rights while others relate to broader Indigenous interests.

The issues of substantive concerns raised by Indigenous groups are the following:

  1. Wildlife, Hunting, and Trapping Rights
  2. Freshwater and Fishing Rights
  3. Impacts on Vegetation, Plants, Trees, and Medicines
  4. Impacts on Indigenous Rights, Culture, and Traditions
  5. Impacts on Land Rights
  6. Cumulative Environmental Effects and Cumulative Impacts on Indigenous Rights
  7. Caribou and Caribou Habitat
  8. Lifecycle Monitoring and Engagement
  9. Emergency Response, Management, and Planning
  10. Economic Benefits
  11. Socio-economic Effects
  12. GHG Emissions and Climate Change

5.1 Wildlife, Hunting, and Trapping Rights

Throughout the consultation process, Indigenous groups provided information on the importance of various wildlife species and their habitat, as well as, Indigenous peoples’ rights in relation to identified wildlife species in the Project area. Specifically, Indigenous groups raised concerns about the potential impacts of the Project on the quality and quantity of culturally significant wildlife due to the disturbed landscape, introduction of environmental contaminants, and increased human activity.

Other key areas of concern raised by Indigenous groups related to Project impacts on Indigenous peoples’ right to hunt and trap in the Project area. Potential impacts were identified based on a reduced access to harvesting sites and routes, increased hunting pressures (from non-Indigenous peoples), and an overall reduction of preferred means to hunt (in quiet locations with no development). Indigenous groups also stated that Project impacts on wildlife would lead to avoidance behaviours by members and general impacts on the social, cultural, spiritual, and experiential aspects of hunting and trapping for Indigenous peoples.

The Crown consultation team notes the Commission’s conclusions that effects of the Project on traditional land and resource use would be short-term to medium-term, reversible in the long-term, limited to the local study area, and low to moderate in magnitude. Based on all of the evidence before it, the Commission assessed the potential adverse effects of the Project on the current use of lands and resources for traditional purposes by Indigenous peoples as not likely to be significant.

The Crown consultation team also notes a number of conditions that would be imposed should the Project be approved which are anticipated to address the concerns of Indigenous groups regarding the need for Indigenous monitors and engagement throughout the Project lifecycle, including Conditions 12 and 27 (Section 52 Pipeline and Related Facilities) and Conditions 10 and 22 (Section 58 Pipeline and Related Facilities).

Lastly, the Government of Canada has a number of programs which could be of benefit to Indigenous groups that contribute to the monitoring, understanding, and management of species at risk in Canada, including the Aboriginal Fund for Species at Risk and the Habitat Stewardship Program.

The Crown consultation team acknowledges the preference of Indigenous groups to exercise rights on undisturbed lands, including rights related to wildlife, hunting, and trapping. The Crown consultation team anticipates that Indigenous groups will be able to continue to exercise harvesting rights over the Project footprint, with the exception of this in the short-term during construction and Project maintenance.

The Crown consultation team anticipates that, with the full implementation of the Project conditions, and NGTL’s commitments, the majority of the Project effects on wildlife and wildlife habitat will be temporary and confined to the construction period. This will also assist in continued remediation of the Project footprint throughout its lifecycle which may assist in decreasing avoidance behaviors by Indigenous peoples.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, the CER conditions, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to wildlife, hunting, and trapping rights.

5.2 Freshwater and Fishing Rights

A number of Indigenous groups noted the significant relationship their communities had with water, and the importance of freshwater to facilitate hunting, fishing, camping, gathering, as well as other cultural and spiritual activities. Key concerns raised in relation to the negative effects of the Project on freshwater sources include those due to disturbances or destruction of watercourses, introduction of herbicides, and other contaminants, potential bank erosion, and an overall reduction in water quality and quantity in the Project area.

Indigenous groups also raised concerns with respect to the potential Project impacts on fishing rights (both subsistence and cultural), resulting from the direct disturbance and destruction of fish resources and fish habitat, as well as the perceived and actual contamination of fish sources. Any disturbance could further reduce fish populations and exacerbate existing issues.

The Crown consultation team notes that NGTL committed to implementing post-construction monitoring following final clean-up, where it would identify any environmental issues based on reports documented during construction and the reclamation phases of the Project. As a part of this, NGTL would monitor watercourse crossings as part of its post-construction monitoring activities. This includes assessments on landscape, soil, and vegetation; evaluation of soil productivity; riparian vegetation re-establishment; erosion control of watercourses, and terrain stability. The Crown consultation team also noted that NGTL would require additional authorizations from the Department of Fisheries and Oceans (DFO) under the Fisheries Act, in relation to any potential harmful alteration, disruption, or destruction to fish and fish habitat. Additionally, all watercourse crossings would need to comply with federal (CER and DFO) and provincial laws and regulations.

The Crown consultation team notes a number of conditions would be imposed should the Project be approved which are anticipated to address the concerns of Indigenous groups regarding freshwater and fishing rights, including Conditions 8, 20, 21, and 22 (Section 52 Pipeline and Related Facilities) and Condition 9 (Section 58 Facilities and Activities).

The Crown consultation team acknowledges the importance of the relationship between Indigenous peoples and water, and the preference of Indigenous groups to exercise rights in undisturbed areas, including rights related to freshwater and fishing. The Crown consultation team anticipates that, with the full implementation of the Project conditions, and NGTL’s commitments, including its post-construction monitoring activities, the majority of the Project effects on freshwater will be temporary and confined to the construction period. The Crown consultation team also anticipates that the additional authorizations required from DFO will help to mitigate harmful alternation, disruption, and destruction of fish and fish habitat, thereby upholding the rights to freshwater and fishing for Indigenous groups.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, the CER conditions, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to freshwater and fishing rights.

5.3 Vegetation, Plants, Trees, and Medicines

Through the consultation process, many Indigenous groups noted the importance of plants and vegetation for subsistence, traditional medicines, and other traditional and cultural practices. A number of concerns were raised through the process, related to the negative impacts of the Project on the quality and quantity of traditionally used vegetation and medicinal plants, due to direct disturbances, introduction of herbicides, invasive weeds and other contaminants, and an inadequate reclamation of the Project right-of-way.

Other key issues of concern raised by Indigenous groups related to potential impacts on harvesting rights and increased avoidance behaviours (due to impacts on preferred means of harvesting), and diminished effects of medicines due to perceived and actual contamination in the proposed right-of-way.

The Crown consultation team notes the specific commitment made by NGTL which would allow culturally significant plants to be removed prior to construction and/or consider culturally appropriate protocols prior to clearing of the lands, and/or promptly communicate construction schedules.

The Crown consultation team also notes a number of conditions that would be imposed should the Project be approved which are anticipated to address the concerns of Indigenous groups regarding vegetation, plants, trees, and medicines. Condition 7 (Section 52 Pipeline and Related Facilities) would require NGTL to submit a report on its wildlife and rare plants survey. Conditions 10 and 27 (Section 52 Pipeline and Related Facilities) as well as Conditions 10 and 22 (Section 58 Facilities and Activities) would require NGTL to submit its Indigenous monitoring plans, describing participation by Indigenous peoples in monitoring activities during both construction and post-construction.

The Crown consultation team acknowledges the preference of Indigenous groups to exercise interests related to vegetation, plants, trees, and medicine on undisturbed lands. The Crown consultation team anticipates that Indigenous groups will be able to continue exercising these interests over the long-term.

The Crown consultation team anticipates that, with the full implementation of the Project conditions, and NGTL’s commitments, including the commitment regarding culturally significant plants, the majority of project effects on vegetation, plants, trees, and medicine will be temporary and confined to the construction period.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, the CER conditions, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to vegetation, plants, trees, and medicines.

5.4 Impacts on Indigenous Rights, Culture, and Traditions

Indigenous groups also raised concerns about a number of potential Project impacts to known and unknown sites of spiritual and ceremonial importance that may be disturbed during clearing and construction, due in part to inadequate input and studies by Indigenous peoples. Sites identified include burial or historical sites, stone features, kill sites, rock art, camps, cabins, ceremonial sites, and archaeological sites. Any disturbance or destruction of these sites could lead to a disruption in inter-generational knowledge transfer and a reduced transference of culture, identity, language, and knowledge to younger generations.

A number of Indigenous groups also raised concerns about the potential loss of access to lands for members due to general preferences to participate in cultural events in quiet areas without any contamination from industrial activities. Many Indigenous groups identified that once land was disturbed for industrial use, even if reclamation takes place, the lands remain unusable for traditional purposes including hunting, trapping, and the gathering of plants for medicinal purposes. This can derogate the cultural and spiritual connection to the land. The ability of Indigenous groups to fulfill their roles as stewards or guardians of the lands, water, and wildlife could also be negatively impacted by the Project.

On these issues, the Crown consultation team notes in particular the commitment made by NGTL to the CER to implement a Cultural Resource Discovery Contingency Plan, which would establish measures to address unanticipated findings such as heritage sites, historic, archaeological and paleontological resources, and human remains. As well, the proponent has indicated that it will consider appropriate cultural ceremonies prior to the start of construction activities on request from interested Indigenous groups. In addition, NGTL stated that the Project is not expected to result in impacts to the intergenerational transfer of traditional knowledge, given the construction schedule, and that the residual effects for TLRU indicators (traditional hunting, trapping, fishing, and plant gathering; and habitation, cultural and spiritual sites within the local and regional study areas) are predicted to be short-term to medium-term in duration and reversible.

The Crown consultation team also notes a number of conditions that would be imposed should the Project be approved which are anticipated to address the concerns of Indigenous groups regarding Indigenous rights, culture, and traditions. Through Condition 15 (Section 52 Pipeline and Related Facilities) and Condition 13 (Section 58 Facilities and Activities), NGTL would be required to provide confirmation that all heritage resource clearances have been obtained from the relevant provincial ministry prior to commencing construction. This notice would also be provided to potentially impacted Indigenous groups that expressed an interest. The Commission further noted NGTL’s commitment to include its final version of NGTL’s Cultural Resource Discovery Contingency Plan in its updated Environmental Protection Plan (EPP), required under Condition 5 (Section 52 Pipeline and Related Facilities and Section 58 Facilities and Activities).

The Crown consultation team acknowledges the preference of Indigenous groups to practice Indigenous rights, culture, and traditions on undisturbed lands. During consultations, it was noted that the cultural and spiritual connection to the land, including the intergenerational transfer of knowledge in this area, is of utmost importance. The Crown consultation team anticipates that Indigenous groups will be able to continue to exercise Indigenous rights, culture, and traditions on these lands in the medium to long-term and that many impacts to the land will be reversible. The Crown consultation team anticipates that, with the full implementation of the Project conditions, and NGTL’s commitments, including the Cultural Resource Discovery Contingency Plan, the majority of project effects on Indigenous rights, culture, and traditions will be temporary and confined to the construction period.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, the CER conditions, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to impacts on Indigenous rights, culture, and traditions.

5.5 Impacts on Land Rights

A number of Indigenous groups raised concerns about the potential for the Project to result in reduced access to lands for Indigenous peoples due to an increase in physical barriers (i.e. fences and gates) and traffic. Several groups similarly noted the increased legal restrictions and decreased access to available lands for the exercise of s.35 rights, resulting from provincial Crown dispositions that would follow any federal approval of the Project. Indigenous group concerns raised about lands rights were also linked to adverse affects on Indigenous peoples’ ability to adhere to traditional practices and protocols regarding harvesting, ceremony, and accessing sacred family sites.

The Crown consultation team notes that in the evidence filed by NGTL, it states that that it cannot restrict or limit access to Indigenous land users except for safety reasons in localized areas during the short periods of active construction. As well, with respect to potential limitations imposed through provincial land dispositions in particular, the Alberta Energy Regulator has recently held that a pipeline right-of-way does not give a company the right to restrict access unless access interferes with the use for which the right-of-way was granted. It is anticipated that approximately 0.92 hectares of land is to be permanently unavailable for the exercise of rights as a result of the Project. All other lands will be remediated and available for the exercise of rights, with limited exceptions for safety.

The Crown consultation team also notes a number of conditions that would be imposed should the Project be approved which are anticipated to address the concerns on impacts to land rights, including: Condition 10 (Section 52 Pipeline and Related Facilities) and Condition 6 (Section 58 Facilities and Activities), both requiring NGTL to report on TLRU studies conducted after the Hearing, and detailing how these studies influenced NGTL’s programs and plans for oversight.

The Crown consultation team acknowledges the preference of Indigenous groups to have undisturbed lands to practice and exercise their s.35 rights. The Crown consultation team anticipates that, with the full implementation of the Project conditions, NGTL’s commitments, including the notion that NGTL cannot restrict access to the land except under specific circumstances, the Crown consultation team anticipates that impacts to land rights will be localized and confined to the construction period.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, the CER conditions, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to impacts on land rights.

5.6 Cumulative Environmental Effects & Cumulative Impacts

Several Indigenous groups raised concerns about the significant cumulative environmental effects from sustained industrial development in the region, which has led to direct and indirect impacts on wildlife (including insects, birds, fish, mammals, reptiles, and amphibians), and the collapse of certain animal populations in the province. On this issue, some Indigenous groups noted that they must now travel further to exercise Aboriginal and Treaty rights due to a loss of Crown land.

Indigenous groups also noted the potential impacts from iterative pipeline expansion projects in the area on land, vegetation, and cultural sites, and the quality and quantity of water in local rivers and creeks. Another key area of Indigenous group concern is related to the lack of credible baseline information to adequately assess the impact of current and future developments and to ensure that the lands could ultimately be ‘restored’ or ‘reclaimed’. There were also concerns from Indigenous groups that the number of NGTL pipelines in areas where members practice their rights, has adversely affected Indigenous peoples’ ability to trust the safety and quality of resources in their territories.

With respect to the potential cumulative impacts of the Project on s.35 rights, the Crown consultation team notes that the Project involves the looping of an existing pipeline in an area of substantial development. As such, the CER assessed most of the cumulative interactions and effects as being short-term, reversible, minor, and limited in spatial extent.

The Crown consultation team agrees with the ultimate conclusion reached by the Commission that a Crown Lands Offset Measures Plan was not appropriate for the Project. The Crown consultation team understands that the Commission’s conclusions on this point were largely based on findings that the Project would create minimal new permanent footprint on Crown land, and that the remainder of the Project footprint would largely remain available for traditional use and activities.

The Crown consultation team acknowledges that the Project, if approved, is being developed in an area of considerable industrial activity. As such, conditions on specific projects (such as those for NGTL 2021) cannot fully address the cumulative environmental effects and cumulative impacts on Indigenous interests. In light of the concerns raised in this area and the historical impacts of development in the Project area, the Crown consultation team recommends a policy-based accommodation to expand the Terrestrial Cumulative Effects Initiative (TCEI), giving additional Indigenous groups access to funds under this initiative.

TCEI is a broad program intended to respond to concerns Indigenous groups have raised about the cumulative effects of development in the terrestrial and freshwater environment. It is a collaborative initiative to build and strengthen Indigenous capacity and work together to better understand the cumulative effects of natural resource development. The information generated through the TCEI could inform future impact assessments or regional assessment.

A full discussion of TCEI as a policy-based accommodation measure is set out in Section 6.1 of the CCAR.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, the CER conditions, the TCEI policy-based accommodation measure, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related cumulative environmental effects and cumulative effects.

5.7 Caribou and Caribou Habitat

A number of Indigenous groups noted the importance of caribou to their communities, and raised concerns in relation to the potential Project impacts on the critical habitat of the Little Smoky Caribou range (listed as threatened under SARA). Specific concerns were raised regarding the potential disturbance or destruction of critical caribou habitat, and increased predation due to increased access, all of which would further endanger the herd’s recovery. The Boreal Woodland Caribou are listed as Threatened on Schedule 1 of SARA, and as endangered under the Alberta Wildlife Act. Federal and provincial estimates indicate that the Little Smoky Caribou range is highly disturbed (95 – 99%). The Project, if approved, would cross 43.9 km of the Little Smoky Caribou Range.

In addition, several Indigenous groups raised concerns with the measures identified by NGTL in its Caribou Habitat Restoration and Offset Measure Plan (CHR&OMP). These groups indicated that the CHR&OMP does not allow for sufficient Indigenous involvement beyond initial steps nor does it provide for co-development of key elements of the plan. The Crown consultation team heard these concerns and the interest expressed by groups that the CER condition regarding the revised CHR&OMP should be more prescriptive about the amount of caribou habitat that would be offset by the proponent in the CHR&OMP at a ratio of 30:1 of habitat restored: habitat lost, in order to be consistent with the Recovery Strategy for Woodland Caribou, Boreal population.

The Crown consultation team notes that there is a draft Conservation Agreement for Woodland Caribou that is being negotiated between ECCC and Alberta Environment and Parks (AEP) in accordance with section 11 of SARA. The purpose of the Conservation Agreement is to establish effective conservation and recovery measures to support woodland caribou local populations in Alberta, with an immediate priority of maintaining critical habitat in all of Alberta’s woodland caribou ranges (including the Little Smoky Caribou range).

To minimize the Project’s impacts on the Little Smoky Caribou range, the CER put in place conditions on NGTL; one related to caribou habitat restoration and five related to monitoring, implementation, and status reports. The Crown consultation team notes in particular, the various proponent commitments made through the Hearing process, and condition amendments that the Commission made as a result of the Hearing process. Specifically, the Commission amended Conditions 6, 31, 32, 33, and 34 (Section 52 Pipeline and Related Facilities) related to caribou and caribou habitat, requiring NGTL to better report on consultations with Indigenous groups on caribou-related conditions, and to provide a copy of the relevant plans and programs directly to interested Indigenous groups.

The Crown consultation team acknowledges the significance of caribou to Indigenous groups. In its conclusion, the Crown consultation team considered the fact that, at the time of the close of Crown consultations, the proposed measures under the Conservation Agreement for Woodland Caribou between ECCC and AEP were not final. This was a key consideration that made it necessary to amend Conditions 6 and 31 (Section 52 Pipeline and Related Facilities). The proposed amendment to Condition 6 would make this condition more prescriptive about the amount of caribou habitat that would be offset by the proponent in the CHR&OMP (at a ratio of 30:1 of habitat restored: habitat lost). In addition, given the importance of the land which should be selected to offset the impacted habitat, the modified condition will require NGTL to consult with the Government of Alberta to identify the most appropriate lands. The proposed amendment to Condition 31 would require NGTL to include information on the length of time anticipated for the restored habitat to become fully functional in the quantitative assessment included in its Caribou Habitat Restoration Implementation Report and Status Update. The new condition, Condition 35, would require NGTL to seek to establish an Indigenous Working Group for the Little Smoky Caribou Range for the purpose of collaborative finalization of the CHR&OMP and related detailed planning concerning restoration, access management, offsets, and monitoring measures, and for the development of other filings relating to caribou, including ensuring the collection and incorporation of caribou-specific Indigenous knowledge. This condition would also require NGTL to report on how the incorporation of cultural ceremonies was included in the filing for this condition.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, the amended CER conditions, the addition of the new condition, and existing government programs and policies are capable of addressing the potential impacts to Indigenous groups’ Indigenous interests, related to caribou and caribou habitat.

5.8 Lifecycle Monitoring and Engagement

A large number of Indigenous groups noted the critical importance of ensuring that Indigenous knowledge, perspectives and concerns would continue to be considered over the lifecycle of the Project. Indigenous groups specifically raised concerns about the need for on-site monitoring and environmental inspections by Indigenous peoples throughout the Project lifecycle. This will ensure that Indigenous knowledge is considered and that potential impacts to Indigenous rights and values are minimized.

In response to concerns monitoring for the duration of the project, the Crown consultation team notes the conditions regarding the need for Indigenous monitors and engagement throughout the lifecycle, including Conditions 12, 14, and 27 (Section 52 Pipeline and Related Facilities) and Conditions 10, 11, and 22 (58 Pipeline and Related Facilities). The Crown consultation team further acknowledges the statements from the Commission regarding its expectations on how NGTL is to incorporate best practices from past Indigenous Advisory and Monitoring Committees in its engagement programs for the Project.

The Crown consultation team acknowledges that Indigenous engagement is at the heart of a robust lifecycle monitoring plan and the importance of ensuring Indigenous interests continue to be considered, and that Indigenous rights continue to be respected by NGTL for the duration of the project. It has been concluded that this issue is significant and necessary to address as it has an impact on s.35 rights. As such, it was necessary to modify Conditions 12, 14, and 27 (Section 52 Pipeline and Related Facilities).

For Conditions 12 and 27 (Section 52 Pipeline and Related Facilities), it was necessary to make amendments requiring NGTL to include more comprehensive information on engagement activities to be undertaken in the development of the construction and post-construction monitoring plans, including providing information as to where suggestions and concerns raised by Indigenous peoples were not incorporated into the plan and an explanation as to why not. The conditions were also amended to require the information filed in order to comply with this condition to be for approval by the Commission.

For Condition 14 (Section 52 Pipeline and Related Facilities), it was necessary to make amendments requiring NGTL to provide a list of Indigenous peoples who have expressed an interest in receiving a copy of filings related to conditions, a list of those filings, and a summary of the discussions NGTL has had with Indigenous peoples regarding capacity to review filings related to conditions. Condition 14 has also been amended to require the information filed under this condition to be for approval by the Commission. And lastly, the condition was amended to include a stipulation that, should Indigenous groups express a requirement for funding to review any of NGTL’s filings related to conditions, NGTL must offer Indigenous groups a reasonable amount of capacity funding to support their review.

The Crown consultation team anticipates that the proposed amendments will enhance reporting requirements, provide capacity funding to review filings, and increase transparency and opportunities for Indigenous input on the monitoring plans for the Project, and thereby address the impacts to s.35 rights in this area heard during consultations.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, the amended CER conditions, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to lifecycle monitoring and engagement.

5.9 Emergency Response, Management, and Planning

Many Indigenous groups raised concerns about the potential Project impacts from accidental releases (contamination due to spills) or other pipeline incidents in their traditional territories. Indigenous groups noted the importance of taking steps to ensure adequate preventative and safety measures are adopted and Indigenous peoples have a strong role in emergency management and response.

More specifically, some Indigenous groups sought group-specific or geographic emergency response plans, and a better means to inform members on the land in the event of an emergency situation. Other Indigenous groups identified ways in which their communities could play a more active role in emergency management and response activities over the lifecycle of the Project.

The Crown consultation team notes that NGTL confirmed that emergency management during construction will be governed by the Project-specific ERP, and during operations by TC Energy’s overarching Emergency Management Corporate Program Manual and related operating procedures. In response to the need for ongoing enforcement, the Crown consultation team notes NGTL’s commitments and the conditions (noted below) that would be imposed by the CER, with respect to ensuring Indigenous engagement and involvement in the development of the Project-specific ERP.

In addition to this, the Crown consultation team notes that in addition to numerous smaller exercises, NGTL typically conducts one “full-scale” emergency response exercise every year in each of its four operating regions (four exercises/year). Exercise locations are selected based on geographical coverage within the region, preparedness in high consequence areas, and ensuring local emergency services have an opportunity to be involved. Based on community interest and questions, NGTL is exploring potential options for Indigenous group attendance and/or participation in these exercises.

The Crown consultation team notes a number of conditions that would be imposed, should the Project be approved, which which are anticipated to address the concerns emergency response, management, and planning, including: Condition 4 (Section 52 Pipeline and Related Facilities and Section 58 Facilities and Activities) which would require NGTL to file an ERP with the Commission to be implemented during the construction phase; Condition 17 (Section 52 Pipeline and Related Facilities) and Condition 15 (Section 58 Facilities and Activities) which will ensure that the company incorporates Project-specific elements in its continuing education program. To address communication concerns, the Crown consultation team notes the requirement that NGTL work with potentially impacted Indigenous groups regarding the potential translation of emergency management information into local Indigenous languages, which may address the concern raised by certain groups on this issue. This is included in Condition 17 (Section 52 Pipeline and Related Facilities) and Condition 15 (Section 58 Facilities and Activities).

The Crown consultation team recognizes the concerns raised by Indigenous groups related to potential release incidents and emergency management planning for the Project. The Crown consultation team specifically notes that CER-regulated companies, such as NGTL, are subject to the CER’s comprehensive regulatory regime with respect to pipeline design, safety, incident prevention, and development of an emergency management program, emergency management system, and emergency preparedness and response. The Crown consultation team anticipates that, with the full implementation of the Project conditions, and NGTL’s commitments, including the Emergency Response Plan, there are adequate emergency response, management, and planning protocols in place to address the concerns raised by Indigenous groups in this area.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to emergency response, management, and planning.

5.10 Economic Benefits

Indigenous groups broadly raised concerns regarding the need for greater economic benefits from the Project for Indigenous peoples. Some Indigenous groups raised concerns about the need for NGTL to enter into direct benefit sharing agreements with impacted Indigenous groups on the Project. A number of other Indigenous peoples sought assurances for greater economic participation in the Project through direct employment, contracting, procurement, and training to enhance capacity for environmental and other Indigenous monitoring opportunities over the Project lifecycle.

The Crown consultation notes that, through the CER Hearing process, NGTL referenced a number of ways in which it provided economic opportunities to Indigenous groups through community investment initiatives, as well as contracting, employment, and training opportunities for qualified Indigenous businesses and peoples.

Specifically, the Crown consultation team notes the various measures being implemented by NGTL, including its Aboriginal Contracting and Employment Program (ACEP), the Aboriginal Participation Plans, the Aboriginal Construction Participation Program (ACPP), and its Post-construction Monitoring (PCM) program. These programs and plans are designed and have the potential to promote economic opportunities, participation, and support for Indigenous groups affected by the Project. NGTL has also further stated that it is willing to meet with any Indigenous group expressing an interest in potential contracting, employment, and training opportunities related to the Project. In doing so, NGTL can work with individual Indigenous groups to help develop an understanding of the Indigenous group’s capacities. NGTL will develop and maintain a list of contracting opportunities that are within the capacity of Indigenous and local contractors in the area.

In addition to this, the Crown consultation team notes that NGTL stated that it works directly with Indigenous communities through community investment, education, and training to promote and enhance long-term benefits for Indigenous communities. NGTL stated that it has been contributing to community investment initiatives with local Indigenous communities in the Project area and would continue to identify opportunities for community investment in the region. This includes in the areas of safety, community, and environment. NGTL stated that it also supports individual community members in achieving their education goals through TC Energy’s Community Scholarships Program, stating that the Program delivers over 500 scholarships to students across North America, including 100 Indigenous Legacy Scholarships specifically for Indigenous students.

The Crown consultation team notes a number of conditions that would be imposed, should the Project be approved, which are anticipated to provide key information to Indigenous groups seeking economic benefits from the Project: Conditions 13 and 28 (Section 52 Pipeline and Related Facilities) and Condition 12 and 23 (Section 58 Facilities and Activities).

The Crown consultation team acknowledges the significance for Indigenous groups to understand and gain economic benefits from resource projects. In particular, the Crown consultation team notes that this issue was discussed in detailed during phase III consultations, specifically the desire for securing economic benefits and opportunities from this Project for Indigenous peoples. As such, the Crown consultation team discussed these issues with NGTL on multiple occasions which helped to facilitate an improved approach on behalf of the proponent towards these issues. The Crown consultation team anticipates that, with the full implementation of the Project conditions, and NGTL’s commitments, there are economic opportunities that can be available for Indigenous peoples from this Project.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to economic benefits.

5.11 Socio-economic Effects

Some Indigenous groups raised concerns about construction camps and transient workers, and their potential impact on local communities due to increased gender-based violence and other negative influences.

The Crown consultation team notes that NGTL indicated that Project employees and contractors would adhere to a Code of Conduct and to TC Energy’s Alcohol and Drug Policy. NGTL would also require employees and contractors to adhere to TC Energy’s health, safety and environment commitment statement. In response to the concerns raised on the impact of construction camps, the Crown consultation team notes in particular, the commitments made by NGTL, which would be enforced through Conditions 7 and 8 (Section 58 Facilities and Activities), to develop a Camp Management Plan for all construction camps. The Camp Management Plan would include a cultural awareness program that is developed and delivered with input from local Indigenous communities and will include gender-specific training.

A number of Indigenous groups also raised concerns with the Project’s potential socio-economic effects on human and ecological health, which could result from increased air emissions and light and sound pollution, as well as consumption of contaminated wild foods and water from impacted lands.

The Crown consultation team notes that NGTL stated that it would implement a Traffic Control Management Plan. The Crown consultation team also notes that the Commission is satisfied that adequate information was provided through the Hearing process and that NGTL’s acoustic environment assessment was completed in accordance with the Filing Manual. Moreover, the Commission is satisfied with the mitigation proposed by NGTL and that it will be in compliance of the Alberta Energy Regulator (AER) regarding permissible sound levels.

The Crown consultation team acknowledges the potential socio-economic effects that this Project can have on Indigenous groups in particular with regards to construction camps and broadly to human and ecological health. The Crown consultation team anticipates that NGTL will mitigate these effects by putting the appropriate protocols in place to deal with these concerns. The Crown consultation team anticipates that, with the full implementation of the Project conditions, and NGTL’s commitments, including the Camp Management Plan and Traffic Control Management Plan, the socio-economic effects will be mitigated and the socio-economic concerns of Indigenous groups will be addressed.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to socio-economic benefits.

5.12 GHG Emissions and Climate Change

Several Indigenous groups raised concerns about the potential impacts of direct Project-related greenhouse gas emissions on climate change and the environment. Concerns were also raised in relation to upstream GHG emissions connected to the Project, and several Indigenous groups brought a motion to have the Commission add upstream GHG emissions to the Project list. The Commission, however, determined that only GHG emissions directly related to the construction and operation of the pipeline would be assessed.

The Crown consultation team notes that the Project’s direct GHG emissions in the operation phase of the Project are estimated to be about 0.38 megatons of carbon dioxide equivalent (Mt CO2) per year at maximum capacity. The annual upstream GHG emissions associated with the Project will range from 1.43 to 1.91 Mt CO2 equivalent for its first year of operation in 2021, and in the 1.53 to 1.93 Mt CO2 equivalent range by 2046. In the CER Recommendation Report, the Commission provided its understanding that during Project operations an increase in emissions is expected, though the emissions from the compressor stations will remain below applicable objectives. The Commission stated that it expects NGTL to work with the Government of Alberta to manage the cumulative effects on the local air quality.

The Crown consultation team also notes that the Upstream GHG Report, prepared by NGTL in support of the Interim Measures for Major Projects, and ECCC’s (as the technical expert) analysis was provided to all Indigenous groups, who were intervenors in the CER review process, and referenced on the MPMO website. Comments on the report were accepted from August 13 to August 28, 2020. NRCan received one comment which did not impact the Upstream GHG Report or ECCC’s analysis. The findings from the GHG Report and ECCC’s analysis are included in the decision package to the GiC for the Project. ECCC’s analysis concluded that direct and upstream emissions associated with the Project would be nearly all incremental. Aside from the proposed NGTL 2021 pipeline, there are no alternative large-scale forms of land-based natural gas transportation that could serve as an economic alternative. Furthermore, upstream emissions from the Project are already accounted for in ECCC’s current emissions projections.

The Crown consultation team also notes that TC Energy, NGTL’s parent company, is developing a Fugitive Emissions Management Plan for its Canadian gas operations system. NGTL has stated that it would submit a synopsis of the Plan relative to the Project prior to the commencement of operations. NGTL further committed to providing a copy of a synopsis of the Fugitive Emissions Management Plan to interested parties involved in the CER Hearing for this Project.

The Crown consultation team also notes that Condition 26 (Section 52 Pipeline and Related Facilities) requires NGTL to report on the quantification of construction-related GHGs.

The Crown consultation team acknowledges the concerns Indigenous groups have raised with regards to GHG emissions and climate change. The Crown consultation team notes that through NGTL’s studies of GHG, it has disclosed the anticipated GHG emissions projected for the Project and fulfilled its commitment with regards to the Upstream GHG Report. The Crown consultation team anticipates that, with the full implementation of the Project conditions, and NGTL’s commitments, NGTL has adequately disclosed the required information on GHG emissions and climate change for this Project, thereby addressing concerns raised by Indigenous groups in this area.

Crown conclusion:

The Crown is of the view that, given the role of the CER as a regulator throughout the lifecycle of the Project and the powers of the CER through compliance verification activities and enforcement actions, the commitments of NGTL, and existing government programs and policies are capable of addressing the potential impacts to Indigenous interests related to GHG emissions and climate change.

The group-specific annexes (or engagement summary and analysis documents) outline specific concerns raised by each Indigenous group consulted or engaged on the Project, as well as the corresponding response and conclusions of the Crown consultation team.

6.0 Accommodation Measure and CER Condition Amendments

Proponent commitments can contribute to addressing issues raised in consultations and to minimize or mitigate the potential impacts that the Project may have on the rights and interests of Indigenous peoples. If the Project is approved, these commitments would be tracked, and binding on NGTL, in accordance with Conditions 2 and 16 of the Project Certificate. Similarly, the binding conditions that the Commission recommended or would impose on the Project, if approved, will also contribute to minimizing or mitigating many of the potential impacts and concerns identified through the consultation process.

Through Phase III of the Crown consultation process, the Crown consultation team worked closely with Indigenous groups to identify and better understand concerns and potential impacts related to the Project. These concerns and potential impacts were then tracked against proponent commitments, CER conditions, and existing federal actions to identify potential gaps requiring additional accommodation.

This section describes additional measures that the Crown consultation team identified that Canada will take to further contribute to avoiding or mitigating the potential concerns and impacts of the Project on s.35 rights.

6.1 Policy-Based Accommodation: Terrestrial Cumulative Effects Initiative

Expanding the Terrestrial Cumulative Effects Initiative (TCEI) to 16 Indigenous groups that were not eligible for funding under the Trans Mountain Pipeline Expansion (TMX) project to build and strengthen capacity and knowledge of Indigenous groups regarding cumulative effects.

Many Indigenous groups raised concerns, either directly or indirectly, about the significant cumulative environmental effects from sustained industrial development in the region. Canada heard similar interests regarding cumulative environmental effects in the reinitiated Phase III Crown Consultations on TMX.

In accommodating these interests for TMX, the Government of Canada committed to collaborating with impacted Indigenous groups to create TCEI, for which ECCC, NRCan, and DFO are the federal government leads. The TCEI was initiated in 2019, with a total of $65.5 million in funding available to eligible Indigenous groups to participate.

The TCEI supports community priorities for Indigenous Knowledge and science to better understand and address the cumulative effects of natural resource development, including:

  1. improving understanding of Indigenous groups’ cumulative effects interests;
  2. strengthening capacity within Indigenous groups regarding cumulative effects; and,
  3. sharing cumulative effects information in a manner that respects the confidentiality of Indigenous Knowledge, as determined by Indigenous groups.

Examples of cumulative effects concerns that the TCEI can be used to address include impacts on:

  • plant communities and wildlife along the RoW from contamination, habitat fragmentation, etc., including impacts on game habitat;
  • ability to harvest species of cultural importance;
  • access to specific locations to exercise hunting, trapping and plant-gathering activities, or other cultural activities;
  • caribou, and other species of concern;
  • water quality and fish species; and,
  • historical, archaeological, or cultural sites.

For this Project, the Crown consultation team discussed TCEI with those Indigenous groups that raised cumulative environmental effects and cumulative impacts to Aboriginal or Treaty rights during the consultation process.

For Indigenous groups that were previously eligible for TCEI through the TMX Hearing process, the Crown consultation team discussed how that program could address concerns in relation to the Project. For Indigenous groups that were not eligible for TCEI as part of the TMX accommodation measure, the Crown consultation team discussed extending TCEI funding to them to address concerns related to cumulative effects of development on rights and other uses (in a manner comparable to what was offered to other Indigenous groups).

6.2 Condition Amendments

As noted above, the binding conditions that would attach to any approved Certificate of Public Convenience and Necessity and any CER Order can contribute to minimizing or mitigating potential impacts and concerns identified through the consultation process.

Through the CER Hearing process, the Commission proposed draft conditions on two occasions (February and July 2019). In total, the Commission added eight new conditions and made a number of amendments to the draft conditions released in February 2019. Subsequent to this, another 19 amendments were made to the draft conditions proposed in July 2019, based on comments and proposals made by parties to the CER Hearing process, including from Indigenous groups, NRCan, and ECCC. NRCan provided the CER, through the Hearing process, specific amendments to the draft conditions to further reduce potential impacts to Indigenous rights. The Crown consultation team notes that many of these amendments were reflected in the conditions outlined in the CER Recommendation Report.

Following the release of the CER Recommendation Report, the Crown consultation team reviewed the 34 conditions that would attach to the Section 52 Certificate for the Project (the Pipeline), together with the outstanding Project impacts identified by Indigenous groups, and any potential mitigation measures. NRCan undertook this review to assess the extent to which any outstanding impacts to s.35 rights could potentially be addressed through amendments to the binding conditions.

In considering whether, and the extent to which amendments could be made to the conditions recommended by the Commission, NRCan took into account the interpretation and guidance provided by the Federal Court of Appeal in Gitxaala (2016 FCA 187) and Tsleil-Waututh Nation (2018 FCA 153).

Following its assessment, the Crown consultation team identified the following list of amendments that should be made to five conditions that would attach to the Section 52 Certificate for the Project.

Condition 6: Revised Caribou Habitat Restoration and Offset Measures Plan (CHR&OMP)

Requiring this condition to be more prescriptive about the amount of caribou habitat that would be offset by the proponent in the CHR&OMP (at a ratio of 30:1 of habitat restored: habitat lost, in a manner consistent with the Recovery Strategy for Woodland Caribou, Boreal population). Given the importance of the land which should be selected to offset the impacted habitat, the proponent will be required to consult with the province of Alberta to identify the most appropriate lands.

Several Indigenous groups noted the significance of caribou to their communities. Indigenous groups noted specific concerns with NGTL’s CHR&OMP. Many Indigenous groups expressed concern that NGTL’s ratio for caribou habitat offset and restoration will fail to adequately compensate for the interim habitat loss, lead to greater population declines, and delay or prevent their ability to exercise s.35 rights. Several Indigenous groups supported a higher offset ratio.

The Crown consultation team concluded that this issue is of significance and necessary to raise as it has an impact on s.35 rights and was deemed necessary to fulfill the Crown’s obligations with respect to the duty to consult.

The proposed amendment to Condition 6 is as follows:

a) NGTL must file with the Commission for approval, at least 60 days prior to commencing construction, a revised version of the CHR&OMP. The updated version of the CHR&OMP is to include revisions based on evidence provided during the hearing process, and a summary of consultation with Indigenous peoples that expressed an interest in being involved with the CHR&OMP during the GH-003-2018 hearing process to confirm that all caribou-specific Indigenous knowledge that has been provided has been reflected. The revised CHR&OMP will include:

  1. a revision log of the updates made, the reference where the updates can be found in the revised document, as well as the reference from the hearing evidence for each update;
  2. a summary of caribou-specific Indigenous knowledge, comments and concerns received from Indigenous communities and the reference where the updates can be found in the revised document. In its summary, NGTL must provide a description and justification for how it has incorporated the results of its consultation, including any recommendations from those consulted, into the CHR&OMP; and
  3. a description of the offsetting measures that will be taken outside of the Project area and, in addition to the restoration measures along the pipeline, to address the total amount of caribou habitat disturbance resulting from the Project, and, in a manner consistent with the Recovery Strategy for the Woodland Caribou (Rangifer tarandus caribou), Boreal population, in Canada. Specifically, NGTL must ensure that it implements an amount of on-the-ground offsetting measures, or equivalent financial contribution to programs managed by the Government of Alberta, for restoration of legacy footprint within the Little Smoky Caribou Range, that will achieve (post-offset) an amount of 3,480 hectares of new, undisturbed habitat as defined in the Recovery Strategy. NGTL must consult with the Government of Alberta in the development of the CHR&OMP.

b) NGTL must also provide a copy of the revised plan to all Indigenous peoples who have expressed an interest in receiving a copy, and to Environment and Climate Change Canada and to all appropriate provincial authorities; and NGTL must, within 7 days of the filing described in paragraph a), provide confirmation to the Commission that it has provided those copies.

Condition 31: Caribou Habitat Restoration Implementation Report and Status Update

Requiring NGTL to include information on the length of time anticipated for the restored habitat to become fully functional in the quantitative assessment included in its Caribou Habitat Restoration Implementation Report and Status Update.

For the reasons noted under Condition 6 above, the Crown consultation team concluded that this issue is of significance and necessary to raise as it has an impact on s.35 rights and was deemed necessary to fulfill the Crown’s obligations with respect to the duty to consult.

The proposed amendment to Condition 31 is as follows:

a) NGTL must file with the Commission, for approval, a Caribou Habitat Restoration Implementation Report and Status Update on the implementation and status of caribou habitat restoration measures undertaken on the Project right of way in areas of the Project within the Little Smoky Caribou Range. This report must be filed on or before 1 November following the implementation of the revised caribou habitat restoration measures identified in the revised CHR&OMP as required by Condition 6, and must include, at a minimum:

  1. a table of caribou habitat restoration measures implemented including, the location(s) of the measures on the right of way, the distance or spatial extent of the measures, the site specific method applied at each location, a description of the adjacent off-right of way habitat, as well as any site specific challenges;
  2. updated Environmental Alignment Sheets showing the types of caribou habitat restoration measures implemented and at what locations;
  3. a quantitative assessment and populated tables of the total remaining disturbance (direct and indirect) that was carried into the initial offset value calculation, including the disturbance before restoration, the restored footprint, the length of time anticipated for the restored habitat to become fully functional, and the total remaining disturbance;
  4. a summary of consultation on this report with Indigenous peoples that expressed an interest in being involved with the CHR&OMP and related filings during the GH-003-2018 hearing process, including any additional caribou-specific Indigenous knowledge, any concerns raised regarding the incorporation of the caribou-specific Indigenous knowledge provided and/or concerns regarding the report content, and a summary of any caribou-specific Indigenous knowledge and/or concerns that were not addressed and a rationale for why they were not addressed;
  5. offset measures planning status; and
  6. updates or considerations, if any, from relevant provincial range or action plans, and any additional Traditional Land Use information identified since completion of the revised CHR&OMP (Condition 6).

b) NGTL must also provide a copy to all Indigenous peoples who have expressed an interest in receiving a copy, to Environment and Climate Change Canada, and to all appropriate provincial authorities; and NGTL must, within 7 days of the filing in a), provide confirmation to the Commission that it has provided those copies.

NEW – Condition 35: Indigenous Working Group for the Little Smoky Caribou Range

Requiring NGTL to seek to establish an Indigenous Working Group for the Little Smoky Caribou Range for the purpose of collaborative finalization of the CHR&OMP and related detailed planning concerning restoration, access management, offsets, and monitoring measures, and for the development of other filings relating to caribou, including ensuring the collection and incorporation of caribou-specific Indigenous knowledge. The condition also requires NGTL to report on how the incorporation of cultural ceremonies was included in the filing for this condition.

For the reasons noted under Conditions 6 and 31 above, the Crown consultation team concluded that this issue is of significance and necessary to raise as it has an impact on s.35 rights and was deemed necessary to fulfill the Crown’s obligations with respect to the duty to consult.

This condition was considered by the Commission but ultimately not included as a condition in the CER Recommendation Report. This draft condition is published in the CER Recommendation Report in Section 8.7.3.3, pages 206-210.

The proposed new condition, Condition 35, is as follows:

For the purpose of collaborative finalization of the CHR&OMP and related detailed planning concerning restoration, access management, offsets, and monitoring measures, and for the development of other filings relating to caribou required under Conditions 6, 31, 32, 33 and 34, including ensuring the collection and incorporation of caribou-specific Indigenous knowledge, NGTL must seek to establish an Indigenous Working Group (IWG) for the Little Smoky Caribou Range with any interested Indigenous communities that have been identified as being potentially affected by the Project (‘The Indigenous Communities’).

a) NGTL must file with the Commission, for approval, within four months of issuance of the certificate for the Project, a plan for the establishment of an IWG. For clarification, the approval of this plan is not required prior to the commencement of construction. The plan for the establishment of the IWG should be developed in collaboration with any of The Indigenous Communities that express interest in participating, and to the extent possible, with the participation of relevant government departments, and must include at a minimum:

  1. a summary of any activities undertaken to-date for the development of the plan to establish an IWG; and
  2. the planned steps for establishing an IWG, including an outline and timeline of activities for collaboration on the development of the IWG and its working documents.

b) NGTL must file with the Commission, for approval, within eight months of issuance of the certificate for the Project, and every six months thereafter throughout the lifespan of the IWG, a report on the progress of the establishment and activities of the IWG:

  1. if one or more of The Indigenous Communities agree to participate in the IWG, the report must confirm the establishment of the IWG and describe:
    1. the membership of the IWG;
    2. the collaboratively-developed working documents of the IWG, including, as agreed to by the membership of the IWG:
      • any terms of reference;
      • the scope of the IWG, including confirmation of any aspects of the Preliminary CHR&OMP that have already been implemented or irreversibly committed to, or are necessary to achieve at  least the same level of protection for caribou and its habitat as committed to during the Commission hearing and in the Preliminary CHR&OMP, and are thus not open to change;
      • decision-making protocol;
      • dispute resolution process;
      • work plan; and
      • the lifespan of the IWG;
    3. a summary of any issues or concerns raised by The Indigenous Communities regarding the functioning of the IWG, including plans or mechanisms for collaborative resolution of those issues, or an explanation as to why any issue or concern identified by The Indigenous Communities will not be addressed. NGTL must include any correspondence from The Indigenous Communities, if provided and subject to any confidentiality agreements, that outlines any issue or concern raised; and
    4. a description of the resources, including funding, that will be available to support the participation of The Indigenous Communities; or
  2. if none of The Indigenous Communities agree to participate, or The Indigenous Communities do not come to agreement on the terms necessary to establish an IWG within eight months of issuance of the certificate for the Project, the report must include an explanation of NGTL’s efforts to create an IWG and a summary of any reasons given by The Indigenous Communities for their non-participation.

c) If an IWG has been formed, following the establishment of the IWG, NGTL must include the following in any filings to the Commission that are required under Conditions 6, 31, 32, 33 and 34:

  1. in addition to the consultation requirements under those other conditions for Indigenous communities that are not participating in the IWG, a description of the collaboration with the IWG that has occurred with respect to the development of the filing, including how caribou-specific Indigenous knowledge has been incorporated into the filing, including the incorporation of cultural ceremonies; and
  2. a summary of any issues or concerns raised by interested Indigenous communities regarding the filing, including how NGTL has addressed the issue or concern in the filing, any ongoing collaborative attempts to resolve the issue or concern, or an explanation as to why the issue or concern will not be addressed.

d) If an IWG has been formed, following establishment of the IWG, NGTL must file a summary of the activities of the IWG every 6 months until all filings under Conditions 6, 31, 32 and 33 have been approved and the first two years of monitoring reports under Condition 34 have been filed.

Condition 14: Report on Engagement with Indigenous Peoples

Putting the onus on NGTL to report that it has asked Indigenous groups about filings and to track this outreach in engagement reports.

Several Indigenous groups raised concerns about the proponent’s sustained engagement with Indigenous peoples over the Project lifecycle. They want to ensure their interests will continue to be considered, and that their rights will continue to be protected for the duration of the Project.

The Crown consultation team concluded that this issue is of significance and necessary to raise as it has an impact on s.35 rights.

Requiring NGTL to provide capacity funding to Indigenous groups, within reason, that are interested in reviewing the filings.

Indigenous groups also raised capacity and funding constraints throughout the consultation process. This is particularly important when a specific Indigenous group has the interest to follow up or review specific filings by a proponent, however, does not have the financial means to follow through with this action.

The Crown consultation team concluded that this issue is of significance and necessary to raise as it has an impact on s.35 rights.

The proposed amendment to Condition 14 is as follows:

a) NGTL must file with the Commission, for approval, at least 30 days prior to commencing construction of the Section 52 Pipeline and Related Facilities, and every six months thereafter until completing construction, a report summarizing NGTL’s engagement with all potentially affected Indigenous peoples. These reports must include but not be limited to:

  1. the methods, dates, and locations of engagement activities, including site visits;
  2. a list of Indigenous peoples who have expressed an interest in receiving a copy of filings related to conditions, a list of those filings, and a summary of the discussions NGTL has had with Indigenous peoples regarding capacity to review filings related to conditions. Should Indigenous groups express a requirement for funding to review NGTL’s filings related to conditions, NGTL must offer Indigenous groups a reasonable amount of capacity funding to support their review;
  3. a summary of the concerns raised by Indigenous peoples;
  4. a description of how NGTL has addressed or will address the concerns raised;
  5. a description of any outstanding concerns; and
  6. a description of how NGTL intends to address any outstanding concerns, or an explanation as to why no further steps will be taken.

b) NGTL must also provide a copy to all Indigenous peoples who have expressed an interest in receiving a copy; and NGTL must, within 7 days of the filing in a), provide confirmation to the Commission that it has provided those copies.

Condition 12: Construction Monitoring Plan for Indigenous Peoples

Ensuring Indigenous knowledge is incorporated and Indigenous rights and interests are considered during the construction phase in a manner that is inclusive of, and accountable to, Indigenous peoples.

During consultations, many Indigenous groups indicated that NGTL’s programs and the CER conditions related to monitoring plans were not sufficiently inclusive of nor accountable to Indigenous Peoples. They also raised concerns about the proponent’s transparency and information sharing once the monitoring plan is in place.

The Crown consultation team concluded that this issue is of significance and necessary to raise as it has an impact on s.35 rights.

The proposed condition amendment to Condition 12 is as follows:

a) NGTL must file with the Commission, for approval at least 30 days prior to commencing construction of the Section 52 Pipeline and Related Facilities, a plan describing participation by Indigenous peoples in monitoring activities during construction. Activities would include monitoring for adverse environmental impacts, heritage resources, areas related to traditional land and resource uses, and areas of cultural significance. The plan must include, but not be limited to:

  1. a summary of engagement activities (including methods, dates, and locations) undertaken with Indigenous peoples to obtain input into the monitoring plan and to develop determine opportunities for their participation in monitoring activities;
  2. a description of how the results from its engagement with Indigenous peoples were incorporated into the plan, and where suggestions and concerns raised by Indigenous peoples were not incorporated into the plan, an explanation as to why not;
  3. a list of Indigenous peoples who were engaged on the plan, and a list of Indigenous peoples who have reached agreement with NGTL to participate as monitors;
  4. a description of the anticipated training and participant requirements, including potential certifications;
  5. the scope, methodology, and justification for monitoring activities to be undertaken by NGTL and each participant identified in a) iii), including those elements of construction and geographic locations that will involve monitors;
  6. a description of how NGTL will use the information gathered through the participation of monitors, including whether and how the information gathered can be shared more broadly with interested Indigenous communities, subject to appropriate protections for confidential information; and
  7. a description of how and the timeframe in which NGTL will provide the information gathered through the participation of monitors to the participating Indigenous communities.

b) NGTL must also provide a copy of the plan to those all Indigenous peoples who have expressed an interest in receiving a copy identified in a) iii); and NGTL must, within 7 days of the filing in a), provide confirmation to the Commission that it has provided those copies.

Condition 27: Post-construction Monitoring Plan for Indigenous Peoples

Ensuring Indigenous knowledge is incorporated and Indigenous rights and interests are considered during the post-construction phase in a manner that is inclusive of, and accountable to, Indigenous peoples.

For the reasons noted under Condition 12 above, the Crown consultation team concluded that this issue is of significance and necessary to raise as it has an impact on s.35 rights and was deemed necessary to fulfill the Crown’s obligations with respect to the duty to consult.

The proposed condition amendment to Condition 27 is as follows:

a) NGTL must file with the Commission for approval, within 90 days after the date that the last Order for Leave to Open is issued, a plan describing participation by Indigenous peoples in monitoring activities during post-construction of the Section 52 Pipeline and Related Facilities. The plan must include, but not be limited to:

  1. a summary of engagement activities (including methods, dates, and locations) undertaken with Indigenous peoples to obtain input into the monitoring plan and to develop determine opportunities for their participation in monitoring activities;
  2. a description of how the results from its engagement with Indigenous peoples were incorporated into the plan, and where suggestions and concerns raised by Indigenous peoples were not incorporated into the plan, an explanation as to why not;
  3. a list of the Indigenous peoples who were engaged on the plan, and a list of Indigenous peoples that have reached agreement with NGTL to participate as monitors;
  4. a description of the anticipated training and participant requirements, including potential certifications;
  5. the scope, methodology, and justification for monitoring activities to be undertaken by NGTL and each participant identified in a)iii), including those elements of post-construction and operation, and geographic locations that will involve monitor(s);
  6. a description of how NGTL will use the information gathered through the participation of monitors including whether and how the information gathered can be shared more broadly with interested Indigenous communities, subject to appropriate protections for confidential information; and
  7. a description of how NGTL will provide the information gathered through the participation of monitors to the participating Indigenous community.

b) NGTL must provide a copy of the plan to these all Indigenous peoples who have expressed an interest in receiving a copy identified in a) iii); and NGTL must, within 7 days of the filing in a), provide confirmation to the Commission that it has provided those copies.

7.0 CER Recommendations

In the CER Report, the Commission made six non-binding recommendations regarding issues and concerns that Indigenous groups had raised, but were beyond the mandate of the Commission to address. The Commission was clear that despite their importance, the recommendations played no role in the Commission’s public interest determination, and its conclusions were unaffected by whether or not the recommendations were ultimately acted upon.

All six of the recommendations made by the Commission implicate the Government of Alberta and three of them implicate the Government of Canada. Accordingly, NRCan engaged the Government of Alberta to discuss measures that have been, or could be, undertaken to address the recommendations. Ultimately, the Government of Alberta has declined to contribute to the responses. As requested by the Government of Alberta, included in this CCAR is a letter of April 15, 2020, that was received by NRCan from the Alberta Associate Minister of Natural Gas and Electricity.

The responses to the CER recommendations implicating Canada are below and are solely from the Government of Canada. Canada will continue in its efforts to work with the Government of Alberta to consider and implement the CER recommendations and underlying concerns identified by Indigenous peoples, as reasonable and appropriate.

7.1 Responses from the Government of Canada to the CER Recommendations

CER Recommendation #1 – Agreement for the Conservation and Recovery of Woodland Caribou: The Commission encouraged Canada and Alberta to expedite the signing of the draft Agreement for the Conservation and Recovery of Woodland Caribou in Alberta that had been negotiated under section 11 of the Species at Risk Act.

Canada and Alberta are currently finalizing a 5-year conservation agreement under section 11 of SARA. This agreement aims to set out measures that will be taken to support the conservation and recovery of the species in Alberta, including in the Little Smoky range.

The draft agreement was posted on the Species at Risk Public Registry for a one-month public comment period, which ended September 6, 2019 and on the Alberta Environment and Parks website for a two-month public period which ended October 6, 2019. The governments of Canada and Alberta received many comments as a result of the public postings, and have worked together to address concerns and revise the agreement. Publication of the final agreement is pending conclusion of negotiations.

The Government of Canada supports working with Indigenous communities to achieve conservation outcomes for boreal caribou through a variety of mechanisms, including through the measures identified in the conservation agreement between Canada and Alberta once finalized.

CER Recommendation #3 – Development of an Offset Framework for Woodland Caribou: The Commission recommended that GiC, in conjunction with ECCC, provincial governments, Indigenous peoples and stakeholders including industry develop a comprehensive and detailed Offsets Framework for linear projects in caribou critical habitat.

The Government of Canada recognizes that offsets are an important tool that can contribute to reducing project effects. ECCC’s Operational Framework for Use of Conservation Allowances establishes the parameters for the use of conservation allowances (or biodiversity offsets). The Framework advises that the ratio of the conservation allowance habitat area to impacted habitat should be greater than 1:1 in all cases, and normally at least 2:1, but could be much higher in some instances to account, for example, for case-specific variables such as the impact type, severity and duration, lag time, and uncertainty.

To complement the Operational Framework, the Government of Canada is exploring options for expanded guidance for offsets, including methodologies for establishing multipliers or ratios. The Government of Canada will undertake consultations on the development of any expanded guidance for offsets.

Currently, Canada is negotiating a conservation agreement with Athabasca Chipewyan First Nation (ACFN) and Mikisew Cree First Nation (MCFN) for the conservation of boreal caribou in northeast Alberta. The conservation measures in the draft conservation agreement with ACFN and MCFN will increase the capacity of ACFN and MCFN in caribou recovery work and support their participation and contribution to relevant caribou recovery forums and initiatives, including provincial-led caribou recovery initiatives in northeastern Alberta.

While the negotiation of the conservation agreement nears its end, funding agreements are in place with both First Nations for the implementation of conservation measures, including the development of an Indigenous standard for calculating offsets. These arrangements could be useful for providing feedback about offsetting, where relevant.

The actions discussed in the conservation agreement, including the implementation of conservation measures, will increase the capacity of ACFN and MCFN in caribou recovery work and support their participation in and contribution to relevant caribou recovery forums and initiatives.

CER Recommendation #6 – Access to Crown Lands for Indigenous Peoples: The Commission recommended that the GiC and the province of Alberta review their policies regarding access for Indigenous peoples to Crown lands so that they are not hindered in exercising their rights.

The Government of Canada is actively reviewing its policies regarding access for Indigenous peoples to Crown lands so that they are not hindered in exercising their rights. Notably, the Government of Canada is supportive of greater participation of Canada’s Indigenous people in land use decision-making and in the establishment of cooperatively managed Indigenous Protected and Conserved Areas (IPCAs) that provide for a validation of s.35 rights and long-term biodiversity conservation outcomes under effective protection mechanisms. The Government of Canada encourages the establishment of IPCAs as part of broader collaborative and inclusive land use planning processes so that Indigenous peoples are not hindered in exercising their rights, and to meet both economic and biodiversity conservation objectives.

7.2 Response Letter to NRCan from Alberta Associate Minister of Natural Gas and Electricity

April 15, 2020

The Honourable Seamus O’Regan
Minister of Natural Resources Canada
Government of Canada
580 Booth Street, 21st Floor, Room C7-1
Ottawa, Ontario K1A 0E4
NRCan.Minister-Ministre.RNCan@Canada.ca

Dear Minister,

On February 19, 2020, the Canada Energy Regulator (CER or Commission) issued its recommendation report on the 2021 NOVA Gas Transmission Ltd. (NGTL) Expansion Project (the project). The report recommends the Governor in Council (GIC) approve the NGTL 2021 Expansion Project with conditions. The report also contains non-binding recommendations to government bodies including the Governments of Canada and Alberta. My government is encouraged that the CER recommends approval of the expansion project. We urge the federal government to complete its final assessment as expeditiously as possible, recognizing the importance of the expansion project to provide necessary egress for Alberta’s natural gas to markets.

In regards to the project recommendation, we acknowledge that the scope of the CER’s proceeding did not focus on matters falling under provincial authority, and correctly so. To be clear, the Commission had a complete and fulsome record to prepare its recommendation report, on which Canada can rely to inform its decision with respect to the project.

In its recommendation report, the Commission of the CER stated that it has a responsibility to identify mitigation measures falling outside the jurisdiction of the CER and within the authority of senior levels of government.

Alberta respectfully questions the Commission’s legal basis to make recommendations on matters within provincial authority. It is not evident how the CER’s authority under either the National Energy Board Act or its mandate under the Canadian Energy Regulator Act provide the CER with authority or responsibility to make recommendations on matters within areas of provincial jurisdiction.

It is particularly problematic that the Commission chose to exercise any discretion it may have by making specific recommendations, beyond simply observing concerns raised beyond its mandate. The Commission did so without a comprehensive understanding of these provincial policy issues or having recognized expertise in areas of complex and evolving provincial policy. It is Alberta’s strong view that Canada cannot and should not rely on the hearing record for this project as a comprehensive, up to date, review of Alberta’s provincial policies. Rather, Canada should continue to engage directly with the province on matters of provincial jurisdiction, and the matters cited by the Commission should be addressed outside of the project approval process.

To underscore this point, it is worth noting that Alberta engages in extensive public consultations when establishing and adjusting land management policies, seeking input from Indigenous groups, landowners and the broader public. Such consultations are far broader than the proponent’s or the Commission’s efforts, as well as the Phase III consultations being conducted by your department for this project.

Additionally, with multiple and often competing activities on provincially owned and regulated public lands, it is also worth noting that the provincial government plays an important role in managing cumulative effects. Alberta has adopted a cumulative effects management system under Strategy 3 of Alberta’s Land Use Framework (2008). Alberta’s land-use planning supports economic diversification, protects the environment, builds strong relationships with Indigenous peoples, and ensures community sustainability and recreational opportunities for future generations, which again are complex and evolving over time.

The Government of Alberta is mindful of the need and desire of members of Indigenous peoples to have access to Crown land. Alberta has a publicly available policy regarding how the Public Lands Administration Regulation interacts with Treaty and other rights of Indigenous peoples.

Alberta committed to working with Indigenous peoples, and has advanced cooperative management initiatives with Indigenous communities and recently established the Kitaskino Nuwené Wildland Provincial Park that is to be supported by a newly created cooperative management board. Our government is currently exploring additional cooperative management opportunities in the Castle Wildland Provincial Park in southern Alberta, and in five additional wildland provincial parks in northeast Alberta.

Alberta is also committed to encouraging and increasing the use of development credits and conservation offsets. Our government is preparing a framework for conservation offsets on public lands that will align with the province place-based, land-use planning approach reflecting regional and sub-regional conditions, interests and desired outcomes. The framework will respect Indigenous peoples’ Treaty rights and traditional uses and aims to sustain biodiversity in working landscapes, while reducing regulatory burden for land managers that employ offsets.

Alberta also supports the involvement of Indigenous peoples and landowners in large project developments to strengthen relationships and improve outcomes. Indigenous communities are often represented in pre-construction assessments as part of common practices with industry project proponents. While there is no standardized program within Alberta, community based monitoring is occurring for many projects.

Alberta continues to work closely with Environment and Climate Change Canada on finalizing a draft agreement articulating a number of actions that will be taken over the next five years to support the conservation and recovery of boreal and southern mountain woodland caribou populations in Alberta. The draft agreement identifies that Canada and Alberta are accountable to conserve and recover woodland caribou populations in Alberta, including the Little Smoky population, and both share responsibility to deliver conservation and recovery measures. The work is underway and advancing with input from the public, industry and Indigenous peoples.

This includes developing a standard calculation to determine contributions to the Alberta Caribou Habitat Restoration Program on a project-by-project basis. The Program will provide opportunities for diverse stakeholders and Indigenous peoples to inform strategy and implementation of habitat restoration efforts. Alberta acknowledges there is room for improving cooperation between federal and provincial government in information sharing and exchanging to enhance understanding of offset programs.

Provincial funding to ensure educational opportunities for Indigenous Peoples occurs through numerous programs with the support of federal government. For example, Alberta provides annual grants to First Nations Colleges. Alberta has also unilaterally committed up to C$1 billion to support Indigenous peoples economic participation in medium to large natural resource projects through the Alberta Indigenous Opportunities Corporations.

As noted, Alberta is already demonstrating leadership in regards to relationships and matters of concern to Indigenous peoples, with multiple initiatives underway as briefly described above. I trust it will be evident to you that the CER’s specific recommendations to Alberta involve complex policy matters within provincial jurisdiction, of which the CER was not fully informed. Alberta views these matters as falling outside the project approval process and more appropriate for discussion in other venues.

Alberta participated as a registered intervener during the CER review. No intervener seriously challenged economic need for the project, and Alberta notes the Commission found that any potential project impacts on the rights and interests of affected Indigenous peoples, after mitigation, are not likely to be significant and can be effectively addressed.

In addition to the CER Report recommendations, Natural Resource Canada’s Major Projects Management Officer provided Alberta Energy a list of issues raised by Indigenous communities to date during Phase III consultations. The list of issues provided includes:

  • Procedural concerns;
  • Specific and cumulative impacts to Indigenous rights and traditional uses;
  • Loss of crown land;
  • Cumulative impacts on the environment, including climate change;
  • Caribou management;
  • Lifecycle monitoring and engagement;
  • Emergency response management and planning;
  • Economic benefits; and
  • Socio-economic issues (e.g. such as health, construction and work camps).

Alberta notes several of the above provided issues were addressed by the CER report and others are best addressed between the proponent and Indigenous communities. Some issues fall within provincial jurisdiction while others have shared federal-provincial jurisdiction. For the matters within Alberta’s jurisdiction, Alberta notes it has well-established policies, programs and processes in place, including those mentioned above, to address many of the potential impacts and issues raised in the consultations process, including but not limited to those impacting cultural and traditional sites and activities, caribou management, greenhouse gas emissions and climate change. In the interest of helpful engagement with the Governor in Council on matters of provincial jurisdiction, I am enclosing a list of relevant legislation, policies and initiatives that may provide helpful context in light of the list of issues that Natural Resources Canada staff has provided.

Alberta expects the Government of Canada to conclude the Phase III consultations and satisfy its duty to consult within the legislated timeline so the Governor in Council can make a decision in respect of the project. Alberta remains committed to continuing its work to address detailed and complex policy issues, which are significantly broader than the specific 2021 NGTL Expansion Project.

I strongly encourage the Government of Canada to recognize the critical importance of this project and to move swiftly to complete its review, particularly given the current economic situation. The additional egress the project will provide is key to revitalizing western Canada’s natural gas sector and is welcomed by the Government of Alberta. I strongly encourage the Governor in Council to approve this important project within the legislated timeline, to ensure timely construction and in-service operation.

Sincerely,

Dale Nally
Associate Minister

Enclosure

Cc:
Christyne Tremblay,
Deputy Minister, Natural Resources Canada

Honourable Jason Nixon,
Minister of Environment and Parks

Honourable Sonya Savage
Minister of Alberta Energy

Honourable Richard Wilson
Minister of Alberta Indigenous Relations

Bev Yee
Deputy Minister, Environment and Parks

Donovan Young
Deputy Minister, Indigenous Relations

Grant Sprague
Deputy Minister, Energy

David James
Associate Deputy Minister, Natural Gas

Enclosure: Relevant Alberta Provincial Legislation, Policies and Initiatives

Legislation and Regulations
  •  Alberta Indigenous Opportunities Corporation Act
  • Alberta Land Stewardship Act
  • Emissions Management and Climate Resilience Act
    • Technology Innovation and Emissions Reductions (TIER) Regulation
  • Environmental Protection and Enhancement Act
  • Forests Act
  • Forest and Prairie Protection Act
  • Highway Development and Protection Act
  • Historical Resources Act
    • Archaeological and Paleontological Research Permit Regulation
  • Public Lands Act
    • Public Lands Administration Regulation (PLAR)
  • Responsible Energy Development Act
  • Water Act
Policies
  • Alberta Aboriginal Consultation Office provides recommendations for Alberta Environment and Parks’ regulatory decisions on consultations guidelines and policies. Key policies, guidelines and documents include:
    • The Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013.
    • The Government of Alberta’s Guidelines on Consultations with First Nations on Land and Natural Resource Management. July 28, 2014.
    • The Government of Alberta’s Policy on Consultations with Metis Settlements on Land and Natural Resource Management, 2015.
    • The Government of Alberta’s Policy on Consultations with Metis Settlements on Land and Natural Resource Management, 2016.
    • The Government of Alberta’s Proponent Guide to First Nations and Metis Settlements Consultation Procedures.
  • Alberta Environment and Parks sets reclamation standards to mitigate impacts to vegetation.
  • Guide to Applying PLAR in the Context of Aboriginal Peoples’ Rights describes how such rights can continue to be exercised on public land.
  • Alberta’s Land Use Framework (2008) – Regional scale environmental management framework are intended to manage the cumulative effect of human activities on air quality, groundwater, surface water and biodiversity. Land use planning efforts are a priority for the Government of Alberta.
  • Alberta-Canada draft Species at Risk Act Section 11 Caribou Agreement in Principle – to be finalized with Canada. The agreement articulates a number of actions that will be taken over the next five years to support the conservation and recovery of boreal and southern mountain woodland caribou populations in Alberta. Finalizing the agreement is consistent with Alberta’s requests for federal investment to support caribou recovery in Alberta.
  • Alberta Energy Regulator’s Directive 60 “Upstream Petroleum Industry Flaring, Incinerating, and Venting” was designed to reduce methane emissions from upstream oil and gas operations. These requirements also apply to pipeline installations that convey gas (e.g. compressor stations, line heaters) licensed by the Alberta Energy Regulator in accordance with the Pipeline Act.
Initiatives
  • In 2018-2019, Alberta provided language resource development funding to Indigenous communities to develop curriculum and language resources, which has been fully committed.
  • Alberta is exploring cooperative management opportunities for several Alberta parks. Community Based Monitoring is also being developed and funded in certain areas.
  • Engagement of Indigenous peoples will occur prior to the finalization of any caribou plans.
  • Pre-construction assessments by Indigenous communities are common industry practice as part of project consultation and regulatory processes such as site visits and surveys.
  • Community based monitoring is occurring in Alberta.
  • Alberta has a comprehensive emergency response program. Alberta Environment and Parks’ Support and Emergency Response Team, works closely with the Alberta Emergency Management Agency and First Nations to mitigate, prepare for, respond to and recover from emergencies.
  • Alberta has recently announced funding to support Indigenous peoples economic participation in medium to large natural resource projects through the Alberta Indigenous Opportunities Corporations.
  • Alberta’s Indigenous Consultation Capacity Program provides all Indigenous communities who participate in Alberta’s consultation process an annual core funding allotment to assist with consultation-related activities regarding land or natural resource management.
  • Alberta is taking steps to reduce methane emissions, and manage reclamation of orphan upstream sites. The government is also undergoing a Liability Management Framework review that includes policies that will address the full lifecycle of development, including Indigenous economic participation in the economy.

8.0 Crown Consultation Team Assessment and Conditions

In response to the proposed NGTL 2021 System Expansion Project, Canada has made a principled, meaningful, and responsive consultation process characterized by genuine efforts to acknowledge and document impacts to s.35 rights identified by Indigenous peoples. The Crown has identified ways to address concerns prior to, or as part of the decision-making process.

Throughout the CER Hearing process, Indigenous groups were provided with opportunities to describe their views on the nature and scope of potential impacts of the Project on Indigenous interests, and on mitigation or accommodations measures that could be applied to address those potential impacts. The Crown consultation process provided Indigenous groups with an opportunity to provide their perspectives on the extent to which the Project affects their ability to manage and make decisions over areas impacted by the Project.

The Crown consultation team made every effort, as a first principle, to listen, to understand, and to respect Indigenous views and perspectives, and to be responsive to those views and perspectives. Canada is appreciative that Indigenous groups approached the consultations in the same vein. Further, Canada appreciates the crucial role that Indigenous groups have made in the consultation process by identifying outstanding issues to be addressed, and contributing information that augmented the quality of analysis available to contribute to decision-making considerations associated with this Project. Canada believes that the overall process represented a constructive step in strengthening the relationship and building trust. Canada believes that the entirety of the consultation process, including the Phase III consultation process, has resulted in a meaningful and responsive two-way dialogue between Canada and potentially impacted Indigenous groups on both procedural and substantive matters.

In this report, including the group-specific annexes (and the engagement summary and analysis documents), Canada has provided its understanding of the potential adverse impacts of the Project on each of the 48 Indigenous group’s s.35 rights, and it bases this understanding on a thorough and meaningful consultation and engagement process. Canada has also set out how certain initiatives would avoid, mitigate, or otherwise accommodate for adverse Project impacts including: proponent commitments; CER conditions that would be legally binding on the Project (if approved); existing federal initiatives; and, additional measures proposed by NRCan through the TCEI policy-based accommodation measure, the proposed amendments to conditions, and the inclusion of a new condition.

This report finds that the Crown has conducted the consultation process in good faith; has offered meaningful two-way dialogue; has provided responses; and, where appropriate, reasonable accommodations to address potential impacts on s.35 rights, as identified. Accordingly, this report concludes that Canada has met its duty to consult, engage, and accommodate the 48 Indigenous groups on the Crown list, as appropriate, for the NGTL 2021 System Expansion Project.

This report, its annexes (and the engagement summary and analysis documents), and independent submissions from Indigenous groups, was submitted to Ministers to inform their judgement on whether the Crown’s duty to consult and accommodate Indigenous groups has been met. Canada is committed to continuing the meaningful relationship with Indigenous groups established throughout the consultation process for this Project.

9.0 Annexes and Engagement Summary and Analysis Documents

There are 42 annexes that are attached to this CCAR, one annex for each of the specific Indigenous groups on the Crown list for which there is a duty to consult owed on this Project.

Each annex provides a summary of the Crown consultation process with the Indigenous group on the Project. Specifically, this includes a summary of the Crown consultation team’s understanding of the procedural and substantive issues, and concerns raised by the Indigenous group. Furthermore, each annex includes the Crown consultation team’s assessment as to whether outstanding issues and concerns have been reasonably addressed through the conditions, mitigation, and accommodation measures.

There are 4 engagement summary and analysis documents and one summary for each of the 4 groups on the Crown list to whom it was determined the Crown does not owe a duty to consult. The engagement summary and analysis document details: (i) the historical and current context; (ii) participation in the broader consultation process; and, (iii) concerns and potential impacts, in relation to the proposed ProjectFootnote 1.

Annexes:

  1. Alexander First Nation
  2. Alexis Nakota Sioux Nation
  3. Apetokosan Nation (Kelly Lake Métis Settlement Society)
  4. Aseniwuche Winewak Nation
  5. Blood Tribe
  6. Cadotte Lake Métis
  7. Driftpile Cree Nation
  8. Duncan’s First Nation
  9. East Prairie Metis Settlement
  10. Enoch Cree Nation #440
  11. Ermineskin Cree Nation
  12. Foothills First Nation
  13. Gift Lake Metis Settlement
  14. Lac Ste. Anne Métis (Gunn Métis Local #55)
  15. Horse Lake First Nation
  16. Kapawe’no First Nation
  17. Kehewin Cree Nation
  18. Kelly Lake Cree Nation
  19. Kelly Lake First Nation
  20. Ktunaxa Nation
  21. Louis Bull Tribe
  22. Métis Nation of Alberta
  23. Montana First Nation
  24. Mountain Métis Nation Association
  25. Nose Creek Community
  26. O’Chiese First Nation
  27. Papaschase First Nation
  28. Paul First Nation
  29. Peavine Metis Settlement
  30. Piikani Nation
  31. Saddle Lake Cree Nation
  32. Samson Cree Nation
  33. Sawridge First Nation
  34. Siksika Nation
  35. Stoney Nakoda Nations – Bearspaw First Nation, Chiniki First Nation, Wesley First Nation
  36. Sturgeon Lake Cree Nation
  37. Sucker Cree First Nation
  38. Sunchild First Nation
  39. Swan River First Nation
  40. Tsuut’ina Nation
  41. Whitefish (Goodfish) Lake First Nation #128
  42. Whitefish Lake First Nation #459

Engagement Summary and Analysis Documents:

  1. Foothills Ojibway First Nation
  2. Michel First Nation
  3. Mountain Cree (Smallboy) Camp
  4. Nakcowinewak Nation of Canada
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