As part of NEB modernization, make oil/gas/pipeline companies partner with Indigenous communities

Prime Minister Justin Trudeau emerges from “re-occupation” tipi erected on Parliament grounds.

During 1-year political/policy assessment, NEB can insist proponent engage Indigenous people as partners

Happy belated birthday, Canada, it’s not every year you turn 150. Canadians had a lot to celebrate yesterday, but a discussion paper released the day before by the National Energy Board Modernization Secretariat suggests our country has one area in which we still have a great deal of work to do: including Indigenous peoples in the economic benefits generated by the Canadian energy industry.

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Justin Trudeau’s Liberals promised on the campaign trail in 2015 to “modernize” the NEB and the process is now well underway following the May report by an expert panel that recommended significant changes in the way energy infrastructure projects (read, pipelines) are reviewed.

The most significant recommendation is to provide a one year period for policy and political input, something the NEB’s mandate and structure don’t accommodate particularly well, especially in this age of the Energy Transition, when Indigenous peoples, eco-activists, and communities either oppose or are very concerned about the environmental impacts of new infrastructure.

A significant theme of the discussion paper is “reconciliation” with Canadian Indigenous peoples, a prominent talking point from the Prime Minister.

“We know what is needed is a total renewal of the relationship between Canada and Indigenous peoples. We have a plan to move towards a nation-to-nation relationship based on recognition, rights, respect, cooperation and partnership, and we are already making it happen,” Trudeau said in a 2015 statement upon the release of the Final Report of the Truth and Reconciliation Commission.

But as Guy Laforest and Janique Dubois argue in a recent Policy Options article, Trudeau’s actions have thus far not lived up to his rhetoric:

Trudeau’s vision of reconciliatory federalism holds the promise of a new type of cooperative federalism that respects the sovereignty of the provinces and Indigenous peoples. But the noble tone of Justin Trudeau’s discourse on reconciliatory federalism carries grand expectations. His treatment of Indigenous nations as stakeholders rather than partners in policy decisions, just like his terse reaction to Quebec’s new approach without engaging with its core ideas, suggest that the discourse of reconciliation is not being accompanied by coherent actions. Without a vision for reconciliation, and concrete actions toward that goal that are shared by the federal, provincial and Indigenous partners, Canadians will have little cause to celebrate.

Enbridge’s Northern Gateway pipeline proposed route, a project that failed to earn support from Indigenous peoples and was ultimately rejected by Trudeau in 2016.

The NEB modernization process may be a vehicle for Trudeau and the Liberals to finally act instead of just talking a good game.

Oil and gas extraction generally occurs in northern Canada, the home of many Indigenous peoples who have lost the hunting, gathering, trapping economy of their ancestors and been deliberately squeezed out of other resource-based industries, like forestry and fishing. As an aside, I acknowledge that many Indigenous people work in the energy sector or own businesses that serve it, but there is still much more to be done for northern communities.

Therefore, it is heartening to see the NEB discussion paper include, “increase economic participation of Indigenous communities and businesses” as part of the modernization process.

Whether it belongs as part of the NEB – which is after all primarily a regulator, not a development agency – or an independent body or even a federal department, is up for debate.

But there is one area where the NEB could have authority, or at least influence, on energy projects that could both meet the goals of reconciliation and benefit industry: forcing industry to include Indigenous people at the very beginning of an energy project instead of as an afterthought to satisfy consultation mandates.

NEBOil and gas producers and pipeline operators have worked for decades under federal legislation that determines who are their stakeholders and who they must communicate with. That narrow focus is in large measure responsible for industry’s slow pivot to engage a broader group of stakeholders and to understand that it must re-earn the political legitimacy it took for granted before the climate change debate and the Energy Transition began a decade or so ago.

Many times I have heard First Nation leaders in Western Canada talk about how when energy projects are planned for their traditional territories – whether that means un-ceded territory in British Columbia or treaty lands in other provinces – industry needs to engage the communities at the very beginning, not later on when all the planning is done and the proponent is simply looking for the government-mandated stamp of approval.

Industry has made some progress toward thinking of Indigenous peoples as partners in development.

NEB modernization can help – or force – them to finish that journey.

The one-year period at the beginning of a project’s NEB review that was recommended by the expert panel is the perfect time for the regulator to ensure that the proponent has made every effort to “partner” with affected Indigenous peoples.

As Indigenous development professionals have often pointed out, what that partnership will look like will vary between communities, projects, and companies.

The important thing is that the proponent respectfully engage Indigenous communities and make a good faith effort to build relationships with the communities. Out of those relationships will come the commercial and political partnerships necessary to advance the project.

Or not, if the project is simply too controversial and unacceptable to the communities.

But a good guess is that in most instances, a sincere effort by the proponent will pay generous dividends during the review process and after.

There are already many examples in British Columbia, for instance, where mining and pipeline companies have successfully adopted this strategy.

If it takes a revamp of the National Energy Board to spread the approach to the rest of Canada and to bring the oil and gas upstream and midstream sectors on board, then so be it.

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