Six Nations Precedent: Indigenous Jurisdiction and Pipelines in Canada

Posted by Larry Sault and Don Richardson

on Jan 29, 2017 3:20:28 PM


Six Nations of the Grand River just set a precedent for Indigenous jurisdiction and National Energy Board (NEB) regulated pipelines in Canada.  And it's a BIG ONE. The precedent will have implications for ALL Indigenous communities seeking to exercise jurisdiction through environmental and cultural heritage monitoring of currently operating oil and gas pipelines across Canada.  This will have major implications for National Energy Board pipeline projects like Energy East and for potential Aboriginal and industry partnerships for monitoring work where approvals are already in place for existing pipelines.

As we like to say, "SHIFT HAPPENS": our experience suggests that Indigenous environmental monitoring simply makes operating infrastructure projects better for all parties.  We follow pipeline regulations very closely for several Indigenous clients, and we've reported on previous precedents like the Enbridge decision on the Enbridge Gas GTA project.  In that project, our work with the Mississaugas of the New Credit set important precedents - those precedents resulted in Aboriginal environmental and cultural heritage monitors being present at one of the largest pipeline related archaeological discoveries in Ontario.


Here's the story

The NEB approved Enbridge’s Line 10 Westover Segment Replacement Project on January 26, 2017.  Line 10 was built in 1962 and is one of several Enbridge Great Lakes pipelines that crosses major Great Lakes rivers and waterways.  Line 10 crosses the Niagara River, while Enbridge Line 5 crosses the Straits of Mackinac and the St. Clair River near Sarnia. Enbridge Line 9 crosses the Thames River upstream from the Chippewas of the Thames and crosses the Grand River, and then crosses every major river on the north shore of Lake Ontario before crossing the Ottawa River. Enbridge Line 9 is subject to a major Supreme Court of Canada case brought by the Chippewas of the Thames focused on the Crown’s duty to consult and accommodate Aboriginal peoples.

These pipeline river and waterway crossings are of great importance to Indigenous communities. The Hamilton-Niagara region is criss-crossed by more than a dozen pipelines, several of them more than a half-century old.  There are so many and, so many unknowns, that the City of Hamilton recently formed a task force to uncover answers and to assess pipeline issues that arise across the region

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Topics: Energy East, Aboriginal Land and Water Stewards, Pipelines, Environmental Assessment Processes, Indigenous Environmental Monitoring

Pipelines and Indigenous Jurisdiction: Husky Energy oil spill

Posted by Don Richardson

on Jul 26, 2016 11:47:07 AM

Left to right, Little Pine Chief Wayne Semaganis, Prince Albert Grand Council (PAGC) Vice Chief Joseph Tsannie, FSIN Chief Bobby Cameron, PAGC Vice Chief Brian Hardlotte, FSIN Vice Chief E. Dutch Lerat, PAGC Grand Chief Ron Michel. Photo credit: Treaty 4 News -

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Topics: Aboriginal Land and Water Stewards, Pipelines, Environmental Assessment Processes

Fish, Canoes, Pipelines – Un-gutting Canadian Environmental Assessment

Posted by Don Richardson

on Jun 22, 2016 5:37:28 PM


The federal government announced the beginning of its review of the federal environmental assessment processes on July 20, 2016 – the day before National Aboriginal Day. The Government of Canada says it has committed to review and restore confidence in Canada’s environmental and regulatory processes and is undertaking a comprehensive review of these processes.  We provide this initial briefing note, and will follow-up with further information as we learn more.  As environmental and energy regulatory geeks, we think this is a big deal.  For many of our clients, this is a really, really big deal.

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Topics: Traditional Knowledge in Environmental Assessments, Environmental Assessment Processes

3 Surprising Facts About Fish Protection and Pipelines in Canada

Posted by Keegan McGrath

on May 20, 2016 3:08:41 PM

Part 1 of a two-part blog post on the environmental review process for energy projects in Canada


In the wake of the National Energy Board’s (NEB) conditional approval of the Kinder Morgan Trans Mountain Pipeline, here are some things we thought you should know about energy projects and fish in Canada.


Regulatory Hand-Off - The National Energy Board is in Charge of… Protecting Fish?

Fisheries and Oceans (DFO) has always been responsible for the protection of fish and the aquatic environment in Canada. But on December 16, 2013, DFO signed a Memorandum of Understanding (MOU) which makes the NEB responsible for the assessment of impacts to fish from energy projects such as pipelines and transmission lines.


At the time, with all the upheaval and changes to government brought on by the Conservative majority and the recent passing of Bill c-38, very little was made of this. Two and a half years on, we wanted to ask the question. Does this delegation of responsibility make any sense?

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Topics: Environmental Assessment Processes

UNDRIP and FPIC, ASAP: Seven Steps to Implementation

Posted by Scott Mackay and Don Richardson

on May 10, 2016 4:57:42 PM

We're off and running with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Free, Prior and Informed Consent (FPIC) - ASAP!!!

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Topics: Aboriginal Land and Water Stewards, Environmental Assessment Processes

7 Implications of New Environmental Assessment Processes for Indigenous Nations

Posted by Don Richardson and Larry Sault

on Jan 28, 2016 10:46:00 AM

Looking both ways: In this post we look at seven implications of new Canadian Environmental Assessments processes for Indigenous Nations.  In a follow-up post we will look at implications for project proponents.

By Don Richardson (Shared Value Solutions Ltd.) and Larry Sault, CEO of Anwaatin - an Indigenous business working with Indigenous communities in linked climate change related Cap and Trade markets that include Ontario, Quebec, Manitoba and California)


On January 27, 2016, Minister of Environment and Climate Change, the Honourable Catherine McKenna, and Minister of Natural Resources, the Honourable Jim Carr, announced an interim approach to restore trust in Environmental Assessment.  In this post we look at seven implications of this new approach to Environmental Assessment for Indigenous Nations.  In a follow-up post we will look at implications for project proponents.  We’ve previously written about related topics, including: "Changes Coming to Canada’s Pipeline Review Processes", "Eyeing the Overhaul of Canada’s Environmental Assessment Process", "Indigenous Environmental Monitoring: Why Bother?", "Aboriginal Edge: Confrontation OR Aboriginal and Industry Partnerships", "Archaeology and Indigenous Rights and Interests", "More to the Picture Than Meets the Eye: Neil Young, Michael Porter, the Athabasca Chipewyan First Nation, and Unconventional Oil and Gas", and "Indigenous Knowledge in Environmental Assessments".

Borrowing a page from economist Michael Porter, whose 1991 “Porter Hypothesis” accurately predicts that good environmental regulations create efficiency and encourage innovations that help improve commercial competitiveness, the Ministers seek to

demonstrate to Canadians and to the world that a clean environment and a strong economy go hand in hand. Protecting the environment and growing the economy are not incompatible goals; in fact, our future success demands that we do both.” 

Evidence suggests that the Ministers' adoption of Porter’s ideas makes sense.  The authors of a comprehensive evidence-based assessment of the Porter Hypothesis conclude that by “suggesting that better protection of the environment could lead to “win–win” solutions for the whole of society, Porter has certainly opened the minds of many people, leading to significant environmental and economic improvements”

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Topics: Traditional Knowledge in Environmental Assessments, Aboriginal and Industry Partnerships, Environmental Assessment Processes

Changes Coming to Canada’s Pipeline Review Processes

Posted by Don Richardson

on Jan 24, 2016 1:06:50 PM

According to news reports from Bloomberg and the National Observer, Canada’s federal government is preparing the specifics of “transition plans” for current pipeline proposals under review by the National Energy Board.  This process is part of a wider process to strengthen environmental assessments.  Trudeau has said he is preparing to overhaul Canada’s environmental assessment process so Canada can get “social license for developing our resources, which will allow us to get our resources to market.”

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Topics: Energy East, Traditional Knowledge in Environmental Assessments, Pipelines, Environmental Assessment Processes

Eyeing the Overhaul of Canada's Environmental Assessment Process

Posted by Don Richardson and Scott Mackay

on Dec 22, 2015 3:18:04 PM

Keep your eyes on our blog for further updates as we learn more about next steps! (Photo by Molly Richardson)


Eyes Wide Open


The first steps in an overhaul of Canada’s Environmental Assessment process are “weeks, not months” away according to Natural Resources Minister Jim Carr.  Canada's new federal government pledges to “immediately review” the assessment process and “modernize” the National Energy Board (NEB).  As Environmental Assessment practitioners, we're eyeing this overhaul closely.  Keep your eyes on our blog for further updates as we learn more about next steps!

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Topics: Traditional Knowledge in Environmental Assessments, Environmental Assessment Processes