Inadequacies in NEB process raises important questions about the Energy East Project

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Unilateral cuts to participant funding in the National Energy Board (“NEB”) hearings for the Energy East Pipeline have raised grave concerns for First Nations about how they can participate in this process in a meaningful way. First Nations are raising concerns about how the serious impacts the proposed project would have on their rights will now be addressed.

The funding cuts for participants are raising important questions about the intersection between regulatory hearings and Aboriginal consultation, and about how Aboriginal title impacts of the project on New Brunswick First Nations will be addressed. OKT’s Renée Pelletier, who represents three New Brunswick First Nations in the NEB review, recently addressed these important issues in informative interviews with CBC radio, CBC television and CBC news.

The NEB’s Process for the Energy East Pipeline Hearings

The Federal Crown previously determined that the NEB review would be used as the vehicle to fulfil the Crown’s constitutional duty to consult and accommodate First Nations about the Energy East Pipeline project. However, there are now questions about the scope of the NEB’s review and thus the ability of that review process to fulfil the Aboriginal consultation and accommodation requirements that are legally required before a decision can be made to approve or modify the project.

The NEB allows parties, like First Nations, to apply for participant funding in order to participate in the Energy East Pipeline hearings. The NEB told participants that the review proceedings for this project would involve two phases, with a maximum funding amount of $80,000 for both phases.

Relying on this information, affected First Nations groups in New Brunswick mapped out their approach to participating in the NEB hearing process and applied for funding for the first phase of the review. The $80,00 maximum funding amount posed challenges for these communities given the scale of the project, the kind of technical evidence that would be required, and the limited financial resources of the communities themselves.

The NEB has unilaterally decided, however, to cut participant funding in half. This decision happened after participants had already submitted funding applications for the first phase without realizing that second phase funding was going to be cut and before participants have even been able to see TransCanada’s revised project application. This means that the New Brunswick (and other) First Nations must now stretch the $40,000 received for phase one funding to cover all the costs associated with their participation for the entire hearing process.

Consultation

Why does it matter that the NEB has cut participant funding in half? Because the Federal Crown has taken the position that the NEB hearing process is the vehicle which the Crown will use to fulfill its duty to consult with, and accommodate the concerns of, affected First Nations. First Nations’ participation is effectively meaningless without sufficient funding to enable proper consultation and a process for genuinely understanding impacts on Aboriginal rights and modifying a project to address and minimize those impacts.

What is meaningful consultation? In an interview with CBC Radio, Renée Pelletier highlights that the courts have explained that this means giving First Nations « more than an opportunity to blow off steam. » Participant funding in these types of projects is used by First Nations to hire experts to assess the documents that have been prepared by the proponent, gather evidence on areas of traditional use to understand the impact that a project might have on the use of their traditional territory, conduct their own internal consultations with land users, elders and traditional knowledge holders to identify the testimony that will be presented, and prepare their own scientific and legal reports to present to the Board that will decide whether or not to recommend that the project gets approved.

The lack of adequate funding in the Energy East Pipeline hearings underscores that consultation can be cost prohibitive for First Nations, who have important rights at stake and are owed a duty from the Crown. The current developments also present a challenge as the Federal Crown must be able, at the end of the day, to demonstrate that adequate Aboriginal consultation has occurred and it appears that this is no longer possible through the NEB process.

Three First Nations in New Brunswick have now taken the position that the NEB process should be put on hold until a consultation protocol has been negotiated between the parties, and adequate funding is provided to enable meaningful consultation to occur through some forum (which may or may not be the NEB process).

Aboriginal Title

The NEB process has also highlighted another important Aboriginal rights issue for First Nations in New Brunswick: the important role that outstanding Aboriginal title rights now play in projects of this nature and scale.

First Nations in the Maritimes continue to have a strong claim of Aboriginal title to their traditional lands. This is because First Nations in the Maritimes signed Peace and Friendship Treaties, which are much different than the Numbered Treaties or modern Land Claims Agreements in other parts of Canada. The sole purpose of these Maritimes treaties was to end hostilities and encourage cooperation between the settlers and First Nations. First Nations did not give up legal rights to land or resources in these Peace and Friendship Treaties — title to Aboriginal lands was never surrendered in any treaty process. The New Brunswick First Nations are now looking to the 2014 Supreme Court decision in the Tsilhqot’in case (discussed in previous OKT blogs here and here) which confirmed that the Crown is obliged to minimize infringement of Aboriginal title rights and obtain consent for development on Aboriginal title lands.

Aboriginal title claims in New Brunswick will and must inform discussions on how projects, like the Energy East Pipeline, will move forward and what the scope of the project will entail. Where pipelines are concerned, the rights and Aboriginal title of many First Nations will be engaged; careful consideration of these rights and meaningful consultation is required.

Where project development steamrolls ahead in unceded territory without stopping to conduct meaningful consultation and accommodation, a later declaration that Aboriginal title exists could unravel the project. If a constitutional duty to consult with affected First Nations is not enough to ensure that the Crown engages in meaningful consultation, perhaps the uncertainty that could flow from development in unceded territory will inspire government and project proponents to ensure consultation obligations are met before these types of projects move ahead.

By Gillian Paul and Ashley Hamp-Gonsalves