Aboriginal Rights and Interests: Current Ontario Regulatory Direction for Pipeline Projects

 

Former Minister of Indian Affairs and Northern Development John Duncan (right) joins Chief Bryan LaForme of the Mississaugas of the New Credit (left), at a special ceremony to mark the signing of a Final Settlement of the First Nation's "Toronto Purchase" specific claims. The ceremony was held Friday October 29, 2010, in the First Nation's community near Hagersville, Ontario. Former Minister of Indian Affairs and Northern Development John Duncan (right) joins Chief Bryan LaForme of the Mississaugas of the New Credit (left), at a special ceremony to mark the signing of a Final Settlement of the First Nation's "Toronto Purchase" specific claims. The ceremony was held Friday October 29, 2010, in the First Nation's community near Hagersville, Ontario.
By Don Richardson, Managing Partner; Emily Ferguson, Environmental Review & Regulatory Affairs Consultant: Shared Value Solutions Ltd.
[If this post is of interest, see our other posts on Unconventional Oil & Gas and TransCanada's proposed Energy East pipeline

On January 30, 2013, the Ontario Energy Board, issued a decision and order with respect to the Enbridge Gas GTA (Greater Toronto Area) Gas project, in response to comments provided by the Mississaugas of the New Credit First Nation. In the decision, the Ontario Energy Board directs Enbridge Gas to, during the construction phase of the pipeline project:

  • For each work site, provide MNCFN with the following information: (i) exact location and size of site; (ii) plans to protect the environment and sensitive watershed; and (iii) the contamination characteristics, dewatering details, and water treatment and discharge plans for the site.
  • Permit Monitors selected by the MNCFN to actively participate in Enbridge's environmental and archaeological assessment and monitoring work at any Work Site that has high archaeological potential or has significant environmental concerns, as determined jointly by the MNCFN and Enbridge, both parties acting reasonably.
  • Provide reasonable financial resources to the MNCFN to hire and administer the Monitors and to hire consultants to review the construction permits and approvals required by Enbridge, to the extent necessary to protect the MNCFN's rights, title and interests.
  • Ensure that it has adequate insurance and/or funds available for any cleanup, compensation and restoration in the event of accidents and malfunctions on the MNCFN's traditional territory resulting from the project.

This Ontario Energy Board direction to a pipeline proponent, while specific to MNCFN, represents a precedent for Ontario pipeline regulations with respect to Aboriginal rights and interests.

In a letter to the Ontario Energy Board dated November 12, 2013, Ontario’s Minister of Energy, Bob Chiarelli stated that, with respect to assessing proposed pipeline projects, the Government of Ontario has adopted the following six principles:

  1. Pipelines must meet the highest available technical standards for public safety and environmental protection;
  2. Pipelines must have world leading contingency planning and emergency response programs;
  3. Proponents and governments must fulfil their duty to consult obligations with Aboriginal communities;
  4. Local communities must be consulted;
  5. Projects should provide demonstrable economic benefits and opportunities to the people of Ontario, over both the short and long term; and
  6. Economic and environmental risks and responsibilities, including remediation, should be borne exclusively by the pipeline companies, who must also provide financial assurance demonstrating their capability to respond to leaks and spills.

Combining the recent Ontario Energy Board direction with respect to Enbridge Gas and MNCFN and the above six principles, and Ontario now has the making of a pipeline policy addressing Aboriginal Rights and Interests. Add the precedent setting Ontario Energy Board Energy East Consultation with respect to TransCanada's proposed energy east pipeline, and Ontario becomes a Canadian jurisdiction to watch for pipeline regulatory approvals and Aboriginal consultation and accommodation.  Regarding TransCanada Pipelines and Aboriginal interests: We expect a high level of interest in TransCanada Energy East and First Nations & Métis Aboriginal interests, including interest in First Nation environmental assessments and capacity, First Nations approaches to water management, Aboriginal and industry partnerships, current uses of traditional lands, environmental assessment peer review, 

In all pipeline projects, Traditional Knowledge Matters to protect and enhance aboriginal community wellbeing, aboriginal interests and aboriginal economic development: traditional ecological knowledge (TEK), traditional land use studies, combining scientific and traditional knowledge, having aboriginal environmental monitors and BEAHR trainingtraditional ecological knowledge and environmental change, aboriginal land use planning, and integration of aboriginal traditional knowledge in environmental assessments. 

[Note: Shared Value Solutions Ltd. provided technical, regulatory and planning assistance to the Mississaugas of the New Credit for the regulatory comments submitted to the Ontario Energy Board for the Enbridge Gas GTA Project]

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