The Federal Government’s recent Discussion Paper on modernizing the National Energy Board (NEB) and incorporating Indigenous Traditional Knowledge (TK) into the Environmental Assessment process raises a number of important questions. Chief among these is how the federal Crown perceives its duty to consult Indigenous nations where their rights may be infringed. From a decision-making standpoint, it is appealing to incorporate TK so that environmental assessments (EAs) are based on more than just Western science and economic incentives; the EAs of the future might incorporate and potentially turn on information about the land, which is sourced from Indigenous peoples who maintain a close relationship with that land. However, as the NEB process currently stands, submission of TK as oral evidence in an NEB hearing is considered satisfactory in terms of Crown consultation. Therefore, Indigenous nations and peoples face a choice – either submit TK to be utilized in the EA and hopefully influence decision-making, or refuse to disclose TK and hope that government will consult with them in some other manner or forum. Neither of these options are in line with the State’s responsibility to obtain free, prior, and informed consent “prior to the approval of any project affecting [Indigenous peoples] lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources,” as articulated in Article 32 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

As discussed in a recent ABS Canada blog post, the Government of Canada has undertaken a comprehensive review of the federal environmental and regulatory review process, including a review of the National Energy Board’s environmental assessment process under the National Energy Board Act (NEB Act). One of the guiding principles of this review is the aim of ensuring “timely, evidence-based decisions reflecting the best available science and Indigenous knowledge.” The Discussion Paper indicates that the federal government is considering changes to the NEB Act, including:

• Creating opportunities for dialogue with Indigenous peoples on energy policy
• Strengthening the approach for Indigenous peoples to build capacity for participation in processes and help coordinate Crown consultations
• Expanding the role of Indigenous peoples in the monitoring of pipeline and other energy infrastructure from construction to decommissioning.

In addition to these Indigenous-specific proposals, the Government of Canada proposes “increasing public participation opportunities in technical hearings, including enhancing support available to all participants to help them navigate the regulatory processes.”

The NEB is tasked with adjudicating energy projects. It undertakes hearings to gather the information it needs to make “transparent, fair and objective recommendation to decision on whether or not a project should be allowed to proceed or an application should be approved.” It is through these hearings that Indigenous groups are invited to present their views and traditional knowledge through oral evidence. However, the Government of Canada has indicated that it will rely on the NEB’s hearing process to meet its duty to consult with Aboriginal peoples on NEB-regulated projects.

In addition to considering submission of TK within an NEB hearing as consultation, the NEB also requires project proponents to provide it with specific information regarding the consultation they have undertaken with Aboriginal groups and information about potential impacts on Indigenous rights and interests and proposed mitigation measures to address those impacts. The NEB presumably encourages proponents to consult with Indigenous nations and groups on their own; Kinder Morgan claims that it undertook Traditional Ecological Knowledge Studies in conceptualizing its Trans Mountain Expansion Project in Alberta and BC:

These studies involved collection of traditional knowledge from potentially affected Aboriginal communities through their participation within five disciplines: vegetation, wildlife, aquatics, archaeology and wetlands. Traditional Ecological Knowledge (TEK) studies are incorporated into the biophysical studies of the Environmental and Socio-Economic Assessment (ESA) used to assess the potential effects of a project on the environment and to design appropriate mitigation. We recognize Aboriginal communities maintain close ties to the land and the importance of integrating relevant TEK into the ESA. TEK complements Western scientific knowledge and provinces information for Project planning.

During NEB hearings on the Trans Mountain Expansion Project, Indigenous groups supplied information about how their rights were going to be impacted by the project. This information included Traditional Ecological Knowledge. Instead of relying on this TEK and responding to real concerns about impact of the project on Indigenous rights, the NEB and the federal government approved the pipeline project. The Indigenous groups’ involvement in the NEB hearing process, to express their concerns and exercise their rights, was considered consultation, which “enabled” the approval.

This flawed consultation process is one of the issues raised in a recent consolidated federal court hearing against the Trans Mountain Expansion Project. For two weeks between October 3 and October 13, 2017, First Nations appeared in front of the Federal Court of Appeal fighting the approval of Kinder Morgan Canada Ltd.’s Trans Mountain pipeline expansion. The First Nations argue that the consultations involved in the NEB EA were inadequate and approval of the project was premature. The First Nations involved in the case are:

1. Tsleil-Waututh Nation
2. Squamish Nation
3. Musqueam Indian Band
4. Coldwater Indian Band
5. Aitchelitz, Skowkale Shxwa:y Village
6. Aitchelitz, Skowkale Shxwa:y Village, sow Ahlie, Squiala First Nation, Tzeachten, Yakweakwioose, Skwah, Kwaw-Kwaw-Aplit & Ts’elxweyeqw Tribe et al. (Sto:lo)
7. Upper Nicola Band
8. Stk’emlupsemc Tw Secwepemc

While Indigenous nations are forced use the court system to fight for their rights, some organizations are working to gather evidence showing how the incorporation of TK into the EA is not only useful, but in line with Indigenous rights and interests. An organization called Shared Value Solutions is conducting a (Research Ethics Board approved) survey in partnership with the University of Guelph, is seeking to learn more about the benefits and challenges of incorporating “Indigenous Knowledge” (IK) into EAs as EA practitioners perceive them. The collaboration claims they are seeking a representative sample of information from people who work in government, industry and Indigenous communities faced with decisions about using and consenting to use of IK in their one and others’ EA- related analysis and reporting.

The Government of Canada and the National Energy Board must do better to entrench the rights and responsibilities articulated in UNDRIP into Canadian environmental assessment law if they intend on pursuing true reconciliation with Indigenous peoples and a sustainable future for all of this land’s inhabitants.