On January 28, 2021 the Ontario Energy Board (OEB) issued its decision to conditionally approve a Leave to Construct (LTC) application brought by Enbridge Gas Inc. (Enbridge) on September 2, 2020.1
The LTC related to some 90.5 kms of pipeline in Southwestern Ontario – 8.4km of which was new while the bulk of construction related to the replacement of existing lines. According to Enbridge, the London Lines Project (the Project) was necessary to address physical integrity risks associated with the aging existing pipelines; to address the need for additional capacity to serve new customers; and, to ensure reliability of supply of the London Lines System.
In accordance with the OEB’s Environmental Guidelines, Enbridge Gas contacted the Ministry of Energy, Northern Development and Mines (MENDM) in respect of the Crown’s duty to consult related to the Project on December 9, 2019. By a letter dated February 26, 2020, the MENDM delegated the procedural aspects of the Crown’s duty to consult for the Project to Enbridge. In the delegation letter, the MENDM identified six Indigenous communities with which Enbridge Gas should consult in relation to the Project:
- Oneida Nations of the Thames
- Chippewas of Thames
- Chippewas of Kettle and Stony Point
- Bkejwanong (Walpole Island)
The Metis Nation of Ontario (MNO) was also notified. Neither Delaware Nation (Moravian of the Thames) nor Muncey Delaware Nation were on the list.
Although provided the opportunity to do so, no First Nation intervened in the OEB process or provided submissions to the Board. Only Board staff raised the issue of Indigenous consultation.
The London Lines Project is large in scope and has the potential to impact (among other things) wildlife, habitat, water and ecosystems and, as a result, could adversely interfere with the aboriginal and treaty rights of Indigenous Nations who continue their role as original stewards of the land.
Haida Nation2 and several subsequent cases have confirmed that consultation must be carried out in good faith – it is a reciprocal process – a two-way street. Further, two recent Supreme Court Cases3, one of which involved Enbridge and Chippewas of the Thames First Nation, have confirmed the role of tribunals in determining whether the scope of the duty to consult was adequately fulfilled. It is decision in the London Lines Project, the OEB noted – while the OEB is the decision maker with respect to the adequacy of the consultation – the opinion of MENDM is important.
As such, OEB staff recommended the OEB be provided with a letter of opinion from the MENDM, prior to the start of construction4, and proposed the following condition of approval for the LTC which the OEB adopted in its final decision:
Enbridge Gas shall file with the OEB, prior to the commencement of construction, a letter of opinion from the Ministry of Energy, Northern Development and Mines (MENDM) stating that the MENDM is satisfied with the adequacy of procedural aspects of the Indigenous consultation for the Project. Leave to construct shall terminate if the letter of opinion is not filed within 12 months of the date on this Decision and Order.5
The OEB Decision and Order granting Enbridge’s LTC stated:
Enbridge Gas followed the OEB’s Guidelines and has made efforts to consult with the six Indigenous communities that were identified by the MENDM, as described in Enbridge Gas’ Indigenous Consultation Report. The Indigenous communities were given direct notice of this proceeding and did not intervene or otherwise raise concerns before the OEB. The OEB grants leave to construct for the Project subject to Enbridge Gas satisfying the conditions of approval in this Decision.6
While Enbridge may have provided copies of its Environmental Assessment to the potentially affected communities and conducted virtual open houses to discuss the project and its impacts, in the midst of the COVID-19 pandemic, Indigenous communities have been overwhelmed by a myriad of health and economic issues facing their Nations. The London Lines Project highlights the need for the Crown and Proponents to consider how the COVID -19 pandemic has impacted the ability of First Nations to fully engage in consultation.
The current health crisis has rendered communities unable to engage internally with their own membership as they traditionally would through open houses, information sessions and other in-person meetings. This is particularly important on larger projects with potentially significant impacts. As well, many communities do not have access to consistent and reliable broadband services, nor do all members have the access to technology which make virtual consultation possible.
It will also be incumbent on Indigenous Nations to review their internal protocols to ensure consultation is carried out productively and in a manner which does not cause undue hardship. Given the importance tribunals such as the OEB play in determining adequacy of consultation and the fact that intervenor funding is often covered, First Nations should consider whether and how their participation in these processes (whether alone or as part of a larger group) might serve to elevate their voice and protect their interests.
Indigenous consultation protocols will be based on the Nation’s unique history, perspective and system of governance. The Protocols will be broadly supported by the community and, as such, members will expect that principles for robust and respectful dialogue will be adhered to. In every case, Proponents and the Crown need to understand and respect community processes.
In this particular environment, where serious health concerns are a priority, it will be necessary for all parties to work together to facilitate creative and safe approaches to consultation. This may mean new ways of engaging, both internally and externally, allowing more time to engage and ensuring appropriate funding is available to support a level playing field.
- Decision and Order, January 28, 2021 (EB 2020-0192) located at: https://www.oeb.ca/participate/applications/current-major-applications/eb-2020-0192
- Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.
- Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 4
- A similar approach was taken by the OEB in its Decision and Order on Enbridge Gas Inc. Scugog Island LTC (EB2017-0261), dated May 31, 2018. The OEB made its approval conditional on Enbridge Gas filing the adequacy letter prior to the commencement of construction. The MENDM’s adequacy letter, dated October 1, 2018, stated it was satisfied with the procedural aspects of Indigenous consultation and was filed with the OEB prior to the commencement of construction. The project went in-service in May 202
- Supra, note 1 at p.31.
- Ibid, p.31