The Case for Change
A significant evolution is occurring in North America regarding awareness of the rights and interests of Indigenous Peoples.
In Canada, shifts in the practices and policies of governments, companies and Indigenous communities themselves have been influenced by the Calls for Action in the 2015 Report of the Truth and Reconciliation Commission of Canada, and by recent Supreme Court of Canada decisions on what the duty to consult and accommodate with Indigenous Nations on major resource development projects entails. Similarly in the U.S., in the wake of high profile Indigenous opposition to specific projects, the discourse is changing in the courts, in regulatory processes, and among companies and Tribal Nations.
These developments are evolving how companies like Enbridge consult and engage with Indigenous Peoples in planning and approval processes for major energy infrastructure projects. Indigenous People in both countries have distinct rights. Governments in both countries have legal frameworks that require government consultation with Indigenous governments and groups on projects that may impact Indigenous rights. And companies like ours want to build mutually beneficial relationships.
The Canadian Constitution recognizes and affirms the existing Aboriginal and treaty rights of Aboriginal Peoples (“Indigenous Nations”) and provides for the protection of those rights. The Government of Canada (i.e. the federal government) has a duty to consult in a meaningful manner when it considers actions that might adversely impact potential or established Indigenous rights. This includes consultation on major resource development projects.
Recent Supreme Court of Canada decisions have helped to clarify what constitutes appropriate consultation by the federal government on a “government-to-government” basis. They have also clarified under what circumstances the federal government may rely on an administrative body—such as Canada’s National Energy Board—to address its duty to consult. At the same time, however, courts and regulators in Canada have repeatedly emphasized the need for both government and Indigenous Nations to find new ways to reconcile the rights and interests of Indigenous Peoples with broader social needs.
Canadian Prime Minister Justin Trudeau has responded by pledging to renew Canada’s nation-to-nation relationship with Indigenous Peoples, including developing a new legal framework for reconciliation with Canada’s Indigenous Peoples. This is expected to build upon Canada’s endorsement of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), as well as the federal government’s commitment to implementing the recommendations put forward by Canada’s Truth and Reconciliation Commission. Current government proposals for changes to regulatory review and environmental assessment processes in Canada aim to further solidify a more influential role for Indigenous Nations and groups in major project reviews.
While these changes are still under development, the federal government is moving to increase Indigenous participation in Enbridge’s Line 3 Replacement Program – that is part of our mainline system for our liquid pipelines in North America – through the establishment of a 16-member Indigenous Advisory and Monitoring Committee (IAMC) to provide the government with advice on regulation and monitoring. This initiative is a collaboration between potentially impacted Indigenous communities, the Government of Canada and the federal regulator for pipelines (the National Energy Board). It will provide a forum for Indigenous communities to advise the government and the National Energy Board on integrating traditional knowledge and cultural values into monitoring, safety and environmental performance, as well as provide input on socio-economic aspects of our Line 3 Replacement Program. The IAMC will receive $21.6 million in federal funding for the first five years. (For further information on this initiative please see section 7 in this Discussion Paper.)
United States Context
In the U.S., there is also a “government-to-government” relationship between the federal government and the Native American Tribes that it recognizes. As in Canada, this relationship requires that consultation with Native American Tribes be meaningful.
Federally recognized Native American Tribes typically occupy and exercise control over legally recognized “Tribal land,” and also have an interest in lands previously ceded to the United States government under historic Treaties which preserve their rights to hunt, fish and gather, and to access sites of historic, cultural or religious importance.
Projects that are located on Tribal land (i.e. land held in trust by the U.S. Government for the benefit of a Tribe) require the consent of the impacted Tribal Nation and the approval of the Bureau of Indian Affairs within the U.S. Department of the Interior. Projects that are located outside of Tribal lands but may impact those lands, or that are located upon or may impact lands or waters to which Tribes retain some rights, require consultation by Federal agencies involved with the granting of permits.
This consultation usually occurs under the provisions of the National Environmental Policy Act (NEPA) and/or the National Historic Preservation Act (NHPA). However, in the U.S., no single government agency at either the federal or state level regulates all pipelines. Accordingly, different agencies are responsible for consulting with affected Tribes to different degrees depending on the type and proposed route of the pipeline. For example, the U.S. Army Corps of Engineers may be responsible for consultation on certain water-related portions of oil pipelines potentially impacting Tribal Nations. Because the Federal Energy Regulatory Commission (FERC) has regulatory authority over natural gas pipelines, it consults with Tribes on all relevant pipeline projects.
In the U.S., as in Canada, the legal duty to consult with Tribes resides with the federal government and not with corporate entities. However, companies such as Enbridge that operate on Tribal lands, or near historical use areas, also have an interest in, and a responsibility to, engage with Indigenous communities on issues, such as pipeline safety, that could potentially affect them.
*Please see Appendix for further discussion on international standards
The governments of Canada and the U.S. have both endorsed UNDRIP, although neither government views this declaration as legally binding.
While every country with Indigenous populations has unique circumstances that require a unique path forward, UNDRIP creates expectations that governments will secure “free, prior and informed consent” (FPIC) from Indigenous Peoples for resource development that could impact their rights.
Although some have interpreted FPIC as a right to “veto” a project, the federal governments of both Canada and the U.S. interpret it as a call for a process of meaningful consultation with Indigenous Peoples with the intent to achieve consent. Enbridge applies FPIC in a manner that is consistent with how it is being interpreted by the governments of Canada and the U.S.
In the course of all of Enbridge’s projects and operations in North America, we recognize and respect the legal rights of Indigenous Peoples and the vital relationship they have with traditional lands and resources. In addition, we have been and continue to be supportive of an increased role for Indigenous communities in regulatory processes related to energy infrastructure.
Because the Indigenous communities that we interact with in both Canada and the U.S. have distinct rights, we do not consider them “stakeholders”. Enbridge therefore has separate policies, accountabilities, strategies, management systems, and resources dedicated to building and maintaining relationships with Indigenous Nations and groups. In developing and applying these policies and systems, we are guided by all applicable laws and regulations as well as by high-level international declarations such as UNDRIP. We are also guided by our own corporate values and informed by voluntary management frameworks that identify the practical steps companies can take to ensure their practices regarding Indigenous rights align with widely recognized norms and standards for responsible business. These include multi stakeholder initiatives such as the Voluntary Principles on Security and Human Rights, and the UN Global Compact and frameworks for sustainable development established by groups such as the International Council on Mining and Metals and the International Finance Corporation (IFC).
Business Challenges and Opportunities
Even with additional guidance and experience, it can be difficult to navigate the changing North American landscape on Indigenous issues. Regulatory standards are shifting, and approaches by government agencies and courts can vary by region. More importantly, the expectations of Indigenous Peoples themselves are evolving, and consensus on what represents clear, consistent and dependable processes and standards is still emerging.
The challenges can be substantial—particularly when companies such as ours find themselves in the midst of significant differences of opinion between Indigenous Peoples and governments. Nevertheless we believe that increased Indigenous participation in decision making on energy infrastructure in North America represents an important opportunity for change that can benefit both Indigenous Peoples as well as the sustainability of the energy systems that all North Americans depend upon.