Canada Energy Regulator submission for Committee Review of Bill C-15

Canada Energy Regulator submission for Committee Review of Bill C-15 [PDF 1355 KB]

8 April 2021

Standing Committee on Indigenous and Northern Affairs
Sixth Floor, 131 Queen Street
House of Commons
Ottawa, ON   K1A 0A6

Attention: Mr. Bob Bratina, M.P., Committee Chair

Dear Committee Members,

Canada Energy Regulator submission for Committee Review of Bill C-15

The Canada Energy Regulator (CER) is an independent federal energy regulator that works to keep energy moving safely across the country.  The CER was established under the Canadian Energy Regulator Act (CER Act), which was part of Bill C-69Footnote 1 and came into force in August 2019.Footnote 2

The CER’s Mission reflects our legislative mandate:

  • Regulating infrastructure to ensure safe and efficient delivery of energy to Canada and the world, protecting the environment, recognizing and respecting the rights of the Indigenous peoples of Canada, and providing timely and relevant energy information and analysis.

The CER’s Vision captures the type of regulator we strive to be, furthering commitments in the CER Act’s preamble:

  • An energy regulator with an exemplary workforce that has the confidence of Canadians; is dedicated to ensuring safety and environmental sustainability; builds strong relationships with First Nations, the Métis, and the Inuit; and enhances Canada’s global competitiveness.

As demonstrated in our Mission and Vision, we are committed to the ongoing process of reconciliation with the Indigenous peoples of Canada and are taking meaningful actions in that direction.

Our efforts towards advancing reconciliation are aided with new tools provided in the CER Act to help us transform the way we work. The legislation designates the organization as an agent of the Crown which has resulted in the CER taking on the role of Crown Consultation Coordinator for certain mid-sized, CER-regulated projects.Footnote 3 The legislation also sets clear policy objectives through its preamble, including a commitment to reconciliation and implementing the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration). The CER has expressly reinforced these preambular commitments, through identifying Reconciliation as our Strategic Priority. We have also started, and will continue, to find ways to implement the UN Declaration in our work, collaboratively and with guidance from Indigenous representation on our Board and Commission,Footnote 4 as well as from the new Indigenous Advisory Committee (discussed below).

We understand that, through its consideration of Bill C-15, the Government of Canada is seeking ways to take effective measures – including legislative, policy and administrative actions – to achieve the objectives of the UN Declaration.

While we recognize that we have further work to do, the CER is submitting this letter to share some practical steps our organization is taking to advance reconciliation and improve regulatory outcomes. The UN Declaration, the Truth and Reconciliation Commission’s Calls to Action, the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Principles Respecting the Government of Canada’s relationship with Indigenous peoples are forming the roadmap for this work.

CER Strategic Priorities

As outlined in the CER’s Strategic Plan and 2021-22 Departmental Plan, we have four interrelated Strategic Priorities: Trust and Confidence; Reconciliation; Competitiveness; and Data and Digital Innovation.

As part of our Reconciliation Strategic Priority, the CER has made a clear commitment to implement the UN Declaration in the delivery of our mandate.  The CER will transform the way we work with the Indigenous peoples of Canada by:

  • Enhancing the involvement of Indigenous peoples in how we discharge our mandate recognizing their unique cultures, knowledge and histories;
  • Building renewed relationships based on the recognition of rights, respect, co-operation and partnership;
  • Improving the cultural competency of the CER and its staff; and
  • Driving meaningful change in the CER’s requirements and expectations of regulated industry.

Indigenous Advisory Committee

In August 2020, the CER announced the formation of its Indigenous Advisory Committee (IAC).  The IAC fulfils a key requirement of the CER Act to establish an advisory committee to enhance the involvement of the Indigenous peoples of Canada and Indigenous organizations in the CER’s regulated infrastructure.Footnote 5

The IAC’s work is grounded in advancing reconciliation.  It serves as part of the overall governance of the CER as its overarching role is to advise the Board of Directors on how the CER can build a renewed relationship with the Indigenous peoples of Canada.Footnote 6 The IAC:

  • Advises on strategy, systemic, and policy and program development matters;
  • Advises on how best to enhance the involvement of Indigenous peoples in respect of the CER’s work;
  • Advises on the integration of Indigenous perspectives, knowledge, teachings, values, use of the land, air, and water, oral traditions, and worldviews in the regulation of CER-regulated energy infrastructure, throughout the lifecycle; and,
  • Helps the Board “raise the bar” when shaping the organization’s strategy related to the integration of the rights, interests and values of the Indigenous peoples of Canada into the CER’s work and processes.

The IAC and Board of Directors have co-developed the IAC’s Terms of Reference, a key milestone in the IAC’s development.  The document reflects shared goals and a common understanding on a framework, roles and responsibilities.

While the IAC’s advice is provided at a strategic level, it will have tangible impacts on the CER’s day-to-day operations. Through its initial meetings, the IAC has provided advice and had discussions with the Board on the CER’s Strategic Plan, the Reconciliation Strategic Priority, and the organization’s ongoing work on its approach to Crown consultation.

Looking ahead, the CER will seek the IAC’s advice on approaches to Indigenous peoples’ involvement in CER regulatory oversight and on the implementation of the UN Declaration. This advice will bring meaningful changes to the way the CER works, including in our oversight of the CER’s regulated companies.

We are confident that the IAC’s strategic advice will help to build trust, mutual capacity and will support more meaningful and effective consultations with Indigenous communities impacted by CER-regulated infrastructure. We are also confident that the IAC’s advice will help create certainty and predictability in the delivery of the CER’s mandate.

Enhanced Indigenous Involvement in Lifecycle Oversight

Indigenous Advisory and Monitoring Committees

The work of the IAC will build on and support other work and initiatives that the CER has undertaken with Indigenous partners, such as the Indigenous Advisory and Monitoring Committees (IAMCs).

In November 2016, the Government of Canada committed to creating an IAMC for each of the Enbridge Line 3 Replacement Program (Line 3)Footnote 7 and the Trans Mountain Existing Pipeline and Expansion Project (TMX).

The IAMCs bring together Indigenous and senior federal representatives to provide advice to regulators, and to monitor project construction and operation. The aim of the IAMCs is to develop meaningful relationships with Indigenous communities along the projects’ corridors, for the entire lifecycle of the two projects. Indigenous peoples, the Government of Canada, and the CER have worked together to create the IAMCs and make progress on co-development work. One of the major achievements of the IAMCs and the CER was the co-development and implementation of an Indigenous Monitoring Program in 2017.

Moreover, learnings from the CER’s work with the IAMCs and engagement with Indigenous peoples, notably with policy and program co-development and co-design initiatives, help to inform the organization’s strategy.

Indigenous Monitors

There has been increased involvement of Indigenous Monitors (IMs) in the CER’s oversight activities, and the CER is exploring options for IMs to bridge into roles that could then be designated as CER Inspection Officers (IOs).

Since the establishment of the IAMCs for Line 3 and TMX, IMs have been working with CER IOs to oversee construction of several projects.Footnote 8 This includes environment and safety inspections, compliance meetings, emergency response exercises, and responding to incidents.  IMs have participated in 70 compliance verification activities (CVAs) for the TMX IAMC and 34 for the Line 3 IAMC.Footnote 9 Outside of the IAMCs, the CER has been contracting with IM employers for IMs to participate on CVAs on Keystone XL construction, and most recently on the NOVA Gas Transmission Ltd. 2021 System Expansion Project (NGTL 2021).Footnote 10

Integral to our work with IMs has been the development of an IM training program where IMs, IOs, and other CER staff learn from one another about their respective approaches to safety and environmental protection. This training includes Elders opening each session with prayers and ceremonies, providing oral Indigenous knowledge, and leading the IM and IO teams on walks through their territories.

NGTL 2021 Initiative

The CER’s initiative on NGTL 2021 is another step on this shared path towards reconciliation.  This initiative will set a framework for ongoing dialogue between the CER and Indigenous peoples on matters that are relevant and important to them.

As part of this ongoing engagement, we have a contracting process underway to partner our IOs with IMs when conducting inspections in the field for CVAs. This “boots on the ground” presence on NGTL 2021 will allow the CER to better integrate Indigenous perspectives in our compliance and oversight activities.  Similarly, while the Keystone XL Project did not have an IAMC, the CER had signed contracts with two Indigenous businesses to employ IMs for construction oversight of this project.

Enhancing Early Engagement

As noted in the preamble of the CER Act, the Government of Canada is committed to using transparent processes that are built on meaningful early engagement and inclusive participation.

From the CER perspective, engaging potentially impacted Indigenous communities at the earliest stages of project design and development is the best way to ensure that Indigenous knowledge is taken into account.

Under the commitments set out in the CER Act, and in line with best practices, the CER has released an Early Engagement Guide, which includes an “early engagement phase” aimed at ensuring consultations with Indigenous peoples begin earlier, are inclusive and meaningful, and reflect the rights and interests of Indigenous peoples. The CER continues to advance and refine its early engagement processes and offer opportunities for meaningful and inclusive participation in its regulatory processes, including offering participant funding.

Adjudicative Processes during COVID-19

In response to the COVID-19 pandemic, the Commission adjusted a number of its adjudicative processes to replace in-person meetings with alternative formats, such as written or virtual proceedings.  This allowed the Commission to continue to offer processes that are fair, timely, transparent and accessible, while also respecting physical distancing measures.

The CER is aware that Indigenous communities face increased challenges and risks associated with COVID-19, and has taken extra measures to help minimize the latter.  As such, when a Notice of Application is sent to an Indigenous community for comment, the CER is:

  • Directly reaching out to Indigenous communities to assess their capacity to engage while under COVID-19 restrictions. Where communities have expressed that they have the ability to engage, CER staff will work with them to arrange engagement by phone or videoconference. This will ensure the safety of community members and CER staff by eliminating in-person contact; and,
  • Continuing to provide additional time (30 days instead of the standard 14 days), for Indigenous communities to respond to Notices of Application from CER.Footnote 11 Further extension requests are assessed on a case-by-case basis.

The CER has taken steps to make adjudicative processes accessible to Indigenous communities during the COVID-19 pandemic, and is committed to continuing work to improve accessibility and being flexible where possible.

Building CER Cultural Competency

As part of the CER’s commitment to advancing reconciliation, the organization has implemented training programs and initiatives geared towards enhancing cultural competency. CER Staff will continue to participate in courses to enhance their understanding of Indigenous peoples’ history and rights. Cultural competency courses include: Indigenous-led content, decolonization, systemic racism, UN Declaration, Truth and Reconciliation Commission Calls to Action, National Inquiry into Missing and Murdered Indigenous Women and Girls Calls to Justice, and more.

Conclusion

While we recognize that reconciliation is a long journey and that we have considerable work to do as an organization, the CER knows that when Indigenous peoples are meaningfully involved in our work and an approach of co-development is used, we can bring together our collective perspectives – Indigenous knowledge and worldviews and Western knowledge and approaches – to ensure Canada’s federally-regulated infrastructure including pipelines are safe, the environment is protected, and Indigenous rights and interests are recognized and respected.

The CER remains deeply committed to the ongoing process of reconciliation and continuing on our path of learning.

We offer our experiences to the Standing Committee on Indigenous and Northern Affairs (INAN) as an example of how a federal institution is working with Indigenous peoples toward the implementation of the UN Declaration.

Sincerely,

Signed by

Gitane De Silva
Chief Executive Officer

Signed by

Cassie J. Doyle
Chairperson of the Board of Directors

Signed by

Damien Côté
Lead Commissioner

Signed by

Tribal Chief Tyrone McNeil
Interim Chairperson of the Indigenous Advisory Committee

Signed by

Kaella-Marie Earle
Interim Vice-Chairperson of the Indigenous Advisory Committee

Enclosures

c.c.:  Canada Energy Regulator Board of Directors
Canada Energy Regulator Commission
Canada Energy Regulator Indigenous Advisory Committee 
The Honorable Seamus O’Regan, Minister of Natural Resources
    Jean-François Tremblay, Deputy Minister, Natural Resources Canada

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