The CER strives to build meaningful relationships with Indigenous Peoples across Canada who might be affected by the facilities we regulate. Crown consultation is just one part of our relationship with Indigenous Peoples. Where we have Crown consultation responsibilities, we will consult with Indigenous communities early and throughout our review process. We tailor the scope and nature of our Crown consultation activities to the complexity of the proposed project and its potential effects, as well as the needs of affected Indigenous communities.
The CER’s consultation with Indigenous Peoples is guided by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the UN Declaration Act. In addition, the CER follows the guidance in the Calls To Action of the Truth and Reconciliation Commission, and the Principles respecting the Government of Canada’s relationship with Indigenous Peoples as well as case law and federal guidance on the duty to consult.
The letter from the CEO on 30 November 2020 provides more details about the CER’s approach to Crown consultation.
What you need to know
Find out about the CER’s consultation responsibilities when a proposed project could affect the rights and interests of Indigenous Peoples, including Treaty and section 35 rights.
Understand how and when the CER decides to review a project, be it for a small change to an existing facility or a proposed major energy activity.
Learn about the steps we take when we consult with Indigenous communities about a proposed project.
See what the CER expects companies to do when they engage with Indigenous Peoples who may be impacted by a project.
When Crown consultation occurs
The duty to consult and, if appropriate, accommodate, is triggered when there is a potential impact to the rights and interests of Indigenous Peoples, including Treaty and section 35 rights and where a decision of the Government might adversely affect the exercise of those rights.
The scope of consultation is proportionate to:
- the nature or extent of the rights involved and
- the potential impact on those rights.
When a project is being reviewed through a hearing process the Commission decides on the hearing steps, and associated timelines and prepares a Recommendation Report. Before a company can build a federally regulated pipeline, power line, or offshore renewable energy project, it must first apply to the CER. We review and assess proposed projects, including potential impacts to people, property, and the environment, as well as examine a company’s engagement activities. The CER’s Commission holds public hearings for projects that require a certificate, and other projects when appropriate.
How Crown consultation is conducted
Crown consultation occurs primarily through the Commission’s assessment process. The Commission has the technical expertise and mandate to consider and address project impacts, including those affecting the rights and interests of Indigenous Peoples. For this reason, Indigenous Peoples are encouraged to participate directly in the Commission’s process to identify issues, concerns, or potential solutions with respect to potential impacts of a proposed project.
For certain types of applications, the CER may conduct additional consultation activities to supplement the Commission’s process. These activities are carried out by the CER in its role as Crown Consultation Coordinator (CCC).
The CCC works independently from the Commission and remains neutral in all its interactions about proposed projects. The CCC seeks to understand potential impacts to the rights and interests of Indigenous Peoples, and to discuss and develop potential mitigations, recommendations and potential accommodation measures.
The CCC files information on the Commission’s hearing record for consideration by the Commission in its assessment of the project application. Discussions with Indigenous communities, the proponent and federal and provincial government departments and agencies are reflected in the CCC’s submissions on the hearing record for the Commission’s consideration.
If a decision is required by Governor in Council, the CCC will consult Indigenous communities on the Commission’s Recommendation Report. The purpose of these supplemental consultations is to identify and address any potentially outstanding project impacts to Indigenous communities’ rights and interests. The CCC prepares a Crown Consultation and Accommodation Report for the Minister of Natural Resources to help inform decision-making.
To identify potentially affected Indigenous Peoples, the CER looks at multiple sources of information, including:
- information submitted by companies in their notices and applications;
- publicly available information about the traditional territories of Indigenous Peoples; and
- information from other federal departments.
For applications that will involve a hearing process, the CCC will reach out to Indigenous communities to understand the potential impacts from the proposed project on their rights and interests, to explain the CER’s regulatory process and how to participate in it, and to provide information on the CER’s participant funding program. Where it is possible that an issue or concern can be addressed early in the review process, CER staff will offer to assist. This may involve arranging meetings with the company or considering collaborative options for resolution, which could include referral to the CER's Alternative Dispute Resolution services.
If a project is approved and the company proceeds to construction, the CER will continue to engage with Indigenous communities as part of our lifecycle oversight role and in support of building meaningful relationships.
Company engagement with Indigenous Peoples
The CER expects companies to engage early with Indigenous Peoples who might be affected by a project and continue to engage when designing a project and throughout the life of that project, if approved.
Engagement should include seeking to understand how the project or activity might impact rights and interests of Indigenous Peoples potentially affected by the project or activity, and seeking to address those concerns, which may include changes to the design of the project or activity.
The CER may also be involved in early engagement as set out in the CER’s Early Engagement Guide. During operations of a facility, companies are expected to keep Indigenous Peoples who might be affected by a project informed of operation and maintenance activities. These expectations are outlined in the Early Engagement Guide, the CER’s Filing Manual and the Onshore Pipeline Regulations.
The CER, Energy Projects, and
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