The Canada Energy Regulator (CER) strives to build meaningful relationships with Indigenous Peoples across the country who are potentially impacted by the infrastructure we regulate. Crown Consultation is just one part of our relationship with Indigenous peoples.
Where the CER has Crown consultation responsibilities, the CER will engage with potentially affected Indigenous Peoples early in the process.
The scope and nature of the Crown Consultation activities will be tailored to the complexity of the proposed project and its potential effects, and the needs of affected Indigenous Peoples.
The CER conducts consultation with Indigenous Peoples recognizing the ten Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples.
When Crown Consultation occurs
The duty to consult and, when required accommodate, is triggered when there is potential impact to Indigenous or treaty rights and where a decision of the Government might adversely affect the exercise of those rights. The scope of consultation is proportionate to:
- the strength of the Indigenous or Treaty rights involved and
- the potential impact on those rights.
The CER has Crown consultation responsibilities as part of project reviews for new pipeline, powerline or offshore renewable energy projects, as well as for activities it regulates over the lifecycle of energy infrastructure.
Project reviews under the Canadian Energy Regulator Act (CER Act)
The CER reviews a variety of types of proposed energy projects ranging from a single meter station addition on an existing pipeline through to proposals for new pipelines with a total new right of way up to 75 kilometers in length. They could also include powerline projects with a voltage of less than 345kV or less than a total of 75 km of new right of way.
For certain projects the CER is the decision-maker while in others the CER is responsible for making recommendations to the cabinet for decision. For these projects the CER is responsible for Crown consultation.
Project reviews under the Impact Assessment Act
Large pipeline projects are jointly reviewed by the CER and the Impact Assessment Agency (Agency). Large projects are those with more than 75 kilometers of new pipeline right of way or international powerlines projects with a voltage of 345kV or more than 75 km of new right of way.
For these projects the Agency will lead the project review hearing, including Crown Consultation for the duration of the review, and the CER will provide support to the Agency throughout.
Lifecycle oversight for CER regulated pipelines
If a project is approved and the company proceeds to construction, the CER is responsible for any Crown Consultation that may be required during the construction, operations and eventual decommissioning and/or abandonment phases of the project. In addition to any Crown Consultation responsibilities that could arise during these phases, the CER will engage with Indigenous communities while we carry out our project oversight role.
How Crown Consultation is conducted
The review processes used by the CER to make decisions or recommendations on proposed projects form an essential part of meeting the Crown’s consultation responsibilities. The CER encourages Indigenous Peoples that may be affected by a proposed project to participate in the review processes.
The CER will identify Indigenous groups whose rights and interests may be impacted by a project. To do so, the CER looks at multiple information sources, including:
- Information submitted by companies in their applications;
- Publically available information about the traditional territories of Indigenous Peoples; and,
- When necessary, information from other federal departments.
The CER will reach out to those potentially affected Indigenous Peoples early in the review process. In early engagement, the CER will offer to meet with Indigenous groups to understand the potential impacts to their rights and interests and to explain the CER’s regulatory process, how to participate in it and provide information on the CER’s Participant Funding Program. Where it is possible that an issue or concern could be addressed early in the review process, CER staff will assist. This may involve arranging meetings with the company or considering collaborative options for resolution.
Where issues or concerns cannot be addressed early in the review process, the CER encourages Indigenous Peoples to bring them forward to a review process where they can be considered by Commissioners.
Depending on the complexity of the project and its potential effects, the review process may include opportunities for Indigenous groups to bring forward their issues or concerns orally as well as in writing. The CER will also make efforts to incorporate Indigenous ceremony into a hearing process, where appropriate and schedule hearings in locations that are convenient to Indigenous participants, where possible.
The CER will use the review process, to the extent possible, to meet the Crown’s duty to consult. All relevant issues and concerns that are brought forward by Indigenous groups will be considered by Commissioners and mitigated or accommodated, where possible. To ensure Commissioners have all the information needed to address issues and concerns raised, it is important for Indigenous groups to participate in available review processes.
In project review processes where there are early meetings with Indigenous groups, CER staff will provide Commissioners with a report of those discussions. All this information will help ensure that the CER panel reviewing the project application, has access to relevant information about the interests and concerns of potentially affected Indigenous Peoples and can effectively mitigate or accommodate, as appropriate.
This approach to Crown consultation provides transparency to the Consultation process since the information that hearing participants provide to the review panel is generally made publically available through the online record. If there are issues or concerns raised that are outside of the mandate of the CER to address, CER staff will work with other federal departments to determine how these can be addressed.
At the end of a project review, if a project is approved and the company proceeds to construction, the CER will continue to engage with Indigenous communities as part of our lifecycle oversight role and in support of building meaningful relationships.
Company Engagement with Indigenous Groups
The CER expects that companies will engage with potentially impacted Indigenous groups about their projects early in the project design and throughout the life of the project.
Companies should provide information about the proposed project or activity, how the project or activity may impact the rights and interests of potentially impacted Indigenous groups and address those concerns through changes to the design of the project or activity.
During operations of a facility, companies are expected to keep Indigenous groups in the area of their facilities informed of operation and maintenance activities. These expectations are outlined in the Early Engagement Guide, the CER’s Filing Manual and the Onshore Pipeline Regulations.
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