Indigenous Monitoring and Lifecycle Involvement in Pipeline Projects

As articulated in our Principles and Objectives for Indigenous Engagement, we recognize that meaningful engagement, economic partnerships and other collaboration with industry are approaches for participation of Indigenous peoples in resource development. These opportunities help Indigenous groups to build pathways to prosperity and are tangible, positive steps toward reconciliation. Indigenous monitoring, or associated committees, may also be appropriate in certain circumstances such as to address specific issues or in cases where specific gaps are identified in Indigenous engagement/ consultation programs.

CEPA and its members are of the view that if a need for additional Indigenous engagement in a specific project is appropriately identified, government should work with the project proponent and affected Indigenous groups to determine a clear purpose and objectives for any new programs or regulatory requirements that may be needed. Specifically, CEPA and its members believe the government should consider the following areas when developing government policy, legislation and regulation in the area of Indigenous monitoring and lifecycle involvement in pipeline projects.

Fit for Purpose: CEPA members recognize that each project and pipeline operation has unique attributes and that all Indigenous groups are distinct, and meaningful engagement requires a case-by-case approach on terms that recognize these differences. Many current and planned transmission pipelines have, or plan to have, robust Indigenous engagement programs (including monitoring), which should be considered prior to establishing new requirements or committees. Indigenous monitoring and advisory committees should not be viewed as inevitable, nor as an appropriate means of addressing all issues or concerns. For the proponent, direct engagement between the companies and the Indigenous groups must take priority. The regulator should do an in-depth analysis of any current programs already planned for a project to identify any gaps and work with Indigenous groups and industry to determine the best way to fill those gaps. In addition, the scope and nature of a project must be considered when determining the need for and/or scope of additional Indigenous involvement in such programs as monitoring or advisory committees. Any requirements to enhance Indigenous participation at any stage in the lifecycle of a pipeline project must consider pre-existing relationships, monitoring commitments or programs already planned for a project, logistical and safety limitations, and required technical expertise while ensuring the safety of pipeline operations remains paramount. Industry will support these advisory committees when they are deemed appropriate, but fundamentally, they are typically not Industry’s processes, but rather between Indigenous groups and the regulator or government.

Relationship Building: CEPA and its members believe that appropriate Indigenous involvement throughout the lifecycle of a pipeline project can be an opportunity to help build or enhance relationships between project proponents and Indigenous groups based on trust and mutual benefit. For example, by providing advice on a given project, committees can ensure project specific concerns are heard and addressed collectively. However, as individual Indigenous groups’ interests are often diverse, community-specific issues are still best addressed through the regulatory process or directly between the proponent and that particularIndigenous group, rather than by a committee. It is imperative that any alternative approaches not overtake or supersede the regulatory process or that direct relationship.

Clear roles and expectations: Project proponents must retain the ability to make decisions regarding their own projects, with oversight by the appropriate lifecycle regulator. A clear framework must be developed up front which outlines a well-defined mandate (including scope, timeline, roles, responsibilities and accountabilities) to ensure that Indigenous involvement at any stage throughout the lifecycle of a project is defined and is complementary to, not duplicative of, the regulator’s compliance verification work (including inspections and audits). Specifically, CEPA recommends the following:

• Indigenous involvement at any phase in a pipeline project be focused on providing advice and not impede the regulator from exercising powers and performing duties and functions that are conferred under relevant legislation and regulation. (e.g. making transparent decisions, orders and recommendations and overseeing construction, operation and abandonment activities):
• opportunities for monitoring should be focused on addressing outstanding issues and be specific to the phase of the project most appropriate for addressing the issue;
• conditions requiring monitoring or other requirements attached to a project approval be appropriately tailored to the nature of the Indigenous group’s impacted rights and the nature of the project impacts. For example, Indigenous monitoring committees should provide an advisory function and be limited in membership with regional representation from groups most impacted;
• in consultation with industry, potentially affected Indigenous groups and other stakeholders, government should develop guidance outlining accountabilities for advisory committees, which will in turn minimize misinterpretation or misunderstanding and impacts on the ongoing working relationship between pipeline companies, Indigenous groups and the regulator or agency;
• government policy and regulatory requirements must not be duplicative of existing programs, regulations or legal requirements; and need to support timely maintenance and repair of operating pipelines. Pipeline companies should not be required to go through additional regulatory process through any advisory committee to make timely decisions on operations and maintenance;
• due process, including the principles of fairness and transparency, be applied in any decisions being considered to expand the role of Indigenous groups in monitoring of pipelines and any other related energy infrastructure, including related to committees.

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