By: Nigel Bankes

PDF Version: Clyde River and Chippewas of the Thames: Some Clarifications Provided But Some Challenges Remain

Cases Commented On: Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 (CanLII) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41 (CanLII)

The Supreme Court of Canada has rendered judgment in two cases involving the National Energy Board (NEB) and the duty to consult Indigenous communities. One decision, Clyde River, involves an authorization granted to Petroleum Geo-Services Inc (PGS) to conduct marine seismic testing in Baffin Bay and Davis Strait under the terms of the Canada Oil and Gas Operations Act, RSC 1985, c O-7 (COGOA). The Supreme Court of Canada concluded that the Crown had failed to discharge its duty to consult and accommodate and that as a result the NEB authorization should be quashed. The second decision, Chippewas of the Thames First Nation (CTFN), involves an order by the NEB under s 58 of the National Energy Board Act, RSC 1985, c N-7  (NEBA) exempting Enbridge Pipelines Inc (Enbridge) from the need to obtain a certificate of public convenience and necessity under s 52 of NEBA and at the same time amending the operation of part of Line 9 (Line 9B), to authorize reversing the flow of the line, increasing its capacity and allowing for the transportation of heavy crude. The Supreme Court of Canada concluded that the Crown was entitled to rely on the procedures adopted by the NEB in engaging with CTFN to discharge the Crown’s duty to consult and accommodate and that those procedures in this case were adequate. Continue reading →

By: Nigel Bankes

PDF Version: The NEB Modernization Report

Report commented on:  Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future, Report of the Expert Panel on the Modernization of the National Energy Board, May 2017, and Volume II, Annexes.

This post provides a summary of and preliminary comments on the Report of the Expert Panel on the Modernization of the National Energy Board (NEB), which was released in May 2017. The Report begins with an overview of “What the Panel Heard” and then articulates a set of five principles which underlie the Panel’s recommendations. The Panel follows this with a statement of the Panel’s vision for Canada’s regulator of energy infrastructure and then a set of recommendations focused around six key themes for realizing the Panel’s vision. These recommendations constitute the meat of the report. The six key themes are: (1) mandate, (2) relationships with Indigenous Peoples, (3) governance and decision-making, (4) public participation, (5) Î-kanatak Askiy Operations (keeping the land pure), and (6) respect for landowners. Continue reading →

By: Amy Matychuk

PDF Version: The Alberta Energy Regulator Grants Rare Participation Rights to Three Indigenous Groups

Decision Commented On: The Alberta Energy Regulator decision on participation in the hearing of Prosper Petroleum Ltd.’s Rigel Project, March 16 2017

On March 16, 2017, the Alberta Energy Regulator (AER) held that three indigenous communities were directly and adversely affected by the Prosper Petroleum Rigel Oil Sands Project and granted these groups participation rights in the hearing on Prosper’s project application.

The AER has been publishing its participation and procedural decisions since September 2015. Since then, there have been 42 decisions dealing with claims by First Nations or Métis communities that they are directly and adversely affected by a proposed project. The AER has denied every claim until now. This decision only gives the three indigenous communities the right to participate in the hearing where the AER will decide whether to green light Prosper’s applications. It does not ensure that their lands or traditional activities will actually be protected, only that they will have the opportunity to explain how the project will affect them. However, given the pattern of decisions since 2015, this is a significant development. Continue reading →