Consideration of Indigenous and Treaty Rights in Hearings
In hearings, it’s the Commission who hears issues, concerns, and evidence about a project. But before the commissioners who make up the Commissioncan make a decision or recommendation about a project, they need to consider a number of factors, including any potential effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.
The role of the Commission
The Commission makes regulatory decisions. This includes assessing new project applications submitted to the CER. The Commission is a regulatory tribunal that holds public hearings when appropriate. A public hearing may be conducted in writing or in person. These hearings are part of the Crown consultation that the CER does throughout the lifecycle of a project. The Commission does this by considering the issues or concerns raised in a hearing that were not resolved by the company early in project development.
What is a regulatory tribunal?
Regulatory tribunals, through legislative mandates, perform duties and exercise powers that fall within the executive branch of government. Regulatory tribunals, such as the Commission, must perform duties and exercise powers, not only in accordance with legislative mandates, but also in accordance with section 35 of the Constitution Act, 1982, and any other laws that apply.
There are several ways in which the Commission sets out to consider potential effects on Indigenous and Treaty rights.
A way to hear directly from Indigenous peoples
To make decisions and recommendations under the Canadian Energy Regulator Act, the Commission holds public hearings where appropriate. Hearings, which must be conducted in a procedurally fair manner, are a practical, effective, and efficient way for Indigenous peoples to present their concerns directly to the Commission about the effects of a project on their rights and interests. The Commission then addresses those concerns when making decisions or recommendations. To ensure the Commission has all the information it needs to address issues and concerns raised, it is important for Indigenous peoples to participate in hearings.
All relevant issues and concerns Indigenous peoples bring forward will be considered by the Commission and mitigated or accommodated where possible. Hearing directly and indirectly about Indigenous peoples’ concerns about the effects of a project on their interests allows the Commission to impose measures to mitigate the impacts and balance, as appropriate, any residual effects with the other societal interests when assessing a project. As a result, decisions on pipeline and power line projects can be made in a manner consistent with the Constitution Act and the honour of the Crown.
A process for Crown consultation
The CER has Crown consultation responsibilities as part of project reviews for new pipeline, power line, or offshore renewable energy projects, as well as for activities it regulates throughout the life of a project. The CER begins the Crown process by working ahead of time to learn more about the project’s potential impacts.
After the CER receives notification that a company plans to apply for a project, it reaches out early to Indigenous peoples who may be affected by the proposed project. If matters remain unresolved after an application is filed, the CER encourages Indigenous communities to participate in the hearing to bring those matters before the Commission. During a hearing, the Commission will continue the Crown consultation by hearing directly from Indigenous peoples.
At the end of the hearing, the Commission will determine if company engagement and Crown consultation and accommodation was adequate. If the Commission is not satisfied that consultation and accommodation was adequate (for example, if there are significant adverse effects on the exercise or practice of Indigenous and Treaty rights in the project area), then it will make a decision or recommendation that the pipeline, power line, or offshore renewable energy project is not in the Canadian public interest.
A check on company engagement
Most early engagement is done by a company. However, the Commission’s process acts as a necessary and important check on that engagement. The Commission will check to see if a company has met what the CER has set out in its requirements for engagement with Indigenous peoples, which we summarize below.
What we expect of companies applying for a project
The CER expects companies to engage with potentially affected Indigenous communities about their projects as early as possible. Information gathered in early engagement then becomes part of the company’s application. The CER expects this engagement to continue throughout the entire life of the project. Our expectations of a company’s engagement activities are covered in the Early Engagement Guide, Filing Manual, and Electricity Filing Manual.
In an application, companies provide information about the proposed project or activity, the impacts of the project or activity, including impacts on the rights and interests of potentially affected Indigenous communities, and measures to address those impacts. For example, they may address impacts through a change to the design of the project or activity.
If Indigenous communities or peoples may be affected by a project, the CER expects companies to file information in accordance with the CER Filing Manual or Electricity Filing Manual. Companies need to:
- describe the Indigenous and Treaty rights of the potentially affected Indigenous peoples in the project area
- describe how Indigenous and Treaty rights are exercised or practiced in the project area
- describe the context in which the Indigenous and Treaty rights are exercised or practiced in the project area
- describe the project’s potential effects on the exercise or practice of Indigenous and Treaty rights in the project area
- describe the measures the applicant will implement to avoid, reduce, or eliminate potential adverse effects of the project on the exercise of Indigenous and Treaty rights and describe any measures that would enhance or support the exercise or practice of Indigenous rights in the project area
- Canadian Energy Regulator Act
- CER Filing Manual
- CER Electricity Filing Manual
- Early Engagement Guide
The CER, Energy Projects, and Indigenous Peoples
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