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The Role of First Nations in Pipeline Approval – Update

By Rob Miller + Tyson Lamarsh - February 25, 2016 under First Nations

On January 27, 2016 the Minister of Environment and Climate Change and the Minister of Natural Resources released a joint statement aimed at clarifying the current state of major project reviews. As part of this statement, changes to the review process for two significant pipeline projects – the Trans Mountain Expansion Project and the Energy East Pipeline – were outlined. For the furthest along of the two projects – the Trans Mountain Expansion Project – the Government stated that it will:

  1. undertake deeper consultations with Indigenous peoples and provide funding to support participation in these consultations;
  2. assess the upstream greenhouse gas emissions associated with this project and make this information public; and
  3. appoint a Ministerial Representative to engage communities, including Indigenous communities potentially affected by the project, to seek their views and report back to the Minister of Natural Resources.

In support of these measures, the Minister of Natural Resources also announced that the timeframe for a Cabinet decision on these two projects would be extended. For the Trans Mountain Expansion Project this means that a Cabinet decision is now expected in December 2016, four months later than the original August 2016 deadline.

These statements come on the heels of the B.C. Supreme Court ruling in Coastal First Nation v British Columbia, which considered the role of British Columbia’s environmental assessment process in approving inter-provincial pipeline projects, which are federal jurisdiction under our Constitution. Although the Court was clear that B.C.’s environmental review process cannot frustrate the federal approval process, it also ruled that:

  1. B.C.’s environmental approval process can be applicable to inter-provincial pipelines;
  2. any project that the provincial process applies to must obtain an environmental certificate pursuant to the Environmental Assessment Act; and
  3. First Nations consultation and accommodation must be carried out by the Province before deciding whether to issues an environmental certificate.

The federal government, through the Major Projects Management Office of Natural Resources Canada, has been approaching First Nations to commence a post-NEB engagement process. However, notwithstanding the Coastal decision, the Province has not yet approached potentially impacted communities.

While these changes may result in greater accommodation of First Nations’ concerns, it is unclear whether the government’s efforts will be sufficient to discharge the obligations owed to potentially impacted Aboriginal groups along the pipeline corridor. In a post-Tsilhqot’in world, Aboriginal consent is the only way to guarantee complete project certainty. Only time will tell whether the federal government’s new approach will be sufficient to achieve this consent. If consent is not forthcoming, the world will be watching to see whether Canada still wishes to proceed with project approval and, if so, whether Canada’s decision to proceed is consistent with the duties that our government owes to Canada’s First Peoples.

If you would like more information regarding the role of First Nations in the pipeline approval process or Aboriginal law issues generally, please contact Rob Miller, Practice Group Leader for the First Nations Economic Development Grouprob@millertiterle.com or Tyson Lamarsh: tyson@millertiterle.com.