NEB “modernization” report falls short for Indigenous peoples

Administrative Law | Consultation and Accommodation | Environmental Assessment | Resources and Environment | UNDRIP

By Matt McPherson

On Monday, the Expert Panel on the Modernization of the National Energy Board (NEB) released its report, Forward, Together: Enabling Canada’s clean, safe, and secure energy future. The Report recognized many of the serious problems with the NEB, but in the end did not make recommendations that are likely to address the concerns of Indigenous communities.

The Panel’s general recommendations include:

  • Replacing the NEB with Canadian Energy Transmission Commission (CETC), which would perform many of same regulatory and technical oversight functions of the NEB.
  • Hiving off the collection of energy data to a separate agency
  • Creating a formal government of Canada energy strategy
    • Creating a two-tier structure for projects of national significance:
    • First, a one-year phase Cabinet would make a decision about whether the project was in the “national interest”.
  • Second, if Cabinet concludes a project is in the national interest (including consideration of obligations to Aboriginal peoples), then a Joint Review Panel made up of the CETC and CEAA would review the technical aspects of the project in a two year time frame and then make a final decision about project approval.
  • expanding the options for public participation in hearing processes.
  • Improving the diversity of panel members, including requirements for Indigenous hearing panel members.

The report proposes a number of significant changes in the way the NEB’s successor will operate, as well as in the approval process for energy transmission projects, but it is questionable whether these changes will have the result that the Panel asserts both for Indigenous communities and for all participants. While there are some recommendations that may benefit Indigenous peoples, overall the Report falls somewhat short.

Panel Recommendations unlikely to address Indigenous concerns

While the Report includes a genuine recognition of problems facing Indigenous communities, the Panel seemed reluctant to grapple with the hard choices involved. As a result, the Report often seems to veer between candid and frank assessments,  and lengthy, tangled paragraphs filled with bureaucratic platitudes instead of concrete solutions.

The two most glaring problems are the Report’s failure to provide recommendations on how Indigenous consent will be obtained in a modernized NEB process and how to address the pervasive lack of funding and capacity for Indigenous people to participate effectively in these processes.

UNDRIP and Consent

On the issue of free, prior, and informed consent and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Panel’s recommendation is:

2.1.1 Indigenous peoples should have a nation-to-nation role in determining Canada’s national energy strategy, and we look to the Minister of Natural Resources to define how this commitment can be met within the context of the decisions and recommendations of the Working Group of Ministers on the Review of Laws and Policies Related to Indigenous Peoples.

It is disappointing that the Panel chose not to provide any recommendations to the Minister based on the many Indigenous voices they heard during their consultation  process. Recommendations on how obtaining consent in this particular setting could have provided some useful guidance to the Minister and the Working Group.

The Panel makes other recommendations about the structure of consultation processes with Indigenous peoples,  and again in several cases defers the ultimate decision about the framework to the Minister, either wholly or in part.

Lack of funding and capacity issues

The Panel stated that while they heard from many Indigenous people that direct capacity funding was inadequate, the issue was “too complex” a question to be resolved by the Panel.

Instead, the Panel recommended addressing capacity issues by creating an Indigenous Major Projects Office (IMPO) “under the governance of Indigenous peoples”. The responsibilities of this office would include “defining clear processes, guidelines, and accountabilities for formal Consultation by the government” and to among other things “help interested Indigenous communities enhance the quality of their participation”.

While this may be well-intentioned , it is simply unacceptable for the Panel to avoid addressing the issue given that lack of adequate capacity funding is one of the largest barriers to genuine and meaningful engagement for Indigenous peoples.

The IMPO is not a substitute for providing proper resourcing for Indigenous nations to understand the effects of someone else’s project on their lands and waters. What the Panel is proposing is setting up another bureaucratic office that might act as a kind of library resource room, but will not address the fundamental underlying problem.

Meaningful consultation and accommodation is not possible without proper capacity and the Report  does not to address that. Indigenous nations are distinct and have their own languages, cultures and values, that may be very different from other Indigenous nations. Creating a pan-Aboriginal consultation organization neither respects that reality nor does it actually build up capacity where it is needed – within the individual communities themselves.

Two-stage approach may not benefit Indigenous communities

Another broader issue is the Panel’s recommendation for a two-stage approach that starts with the consideration by Cabinet of the “national interest”. While there may be some cases in which it will be relatively clear at the outset which way the wind blows (Northern Gateway for example) deciding about whether the pros out way the cons in terms of the national interest moves away from a sustainability framework and from transparent decision-making, and also may lead to premature determinations about whether something is actually in the national interest. It is in fact difficult to see how an informed decision about whether a project is in the national interest could be made in the absence of the evidence and data about both the benefits and adverse effects of the project that would be gathered from consultation and a hearing process.

It is also deeply concerning that this type of decision would be made at the outset of the process in the absence of detailed and comprehensive reasons from the decision-maker. If Cabinet is going to make a final decision then it must be required to show the specific criteria used and the evidence that support that rationale.

If real change is going to happen that means more than words and discussion, it means concrete, definitive plans that will address the concerns of Indigenous nations.


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