Canada Gazette, Part I, Volume 158, Number 1: ORDERS IN COUNCIL
January 6, 2024
DEPARTMENT OF NATURAL RESOURCES
CANADIAN ENERGY REGULATOR ACT
Order — Certificate of public convenience and necessity authorizing the construction and operation of the NEBC Connector Project
P.C. 2023-1315 December 21, 2023
Whereas, on November 18, 2021, NorthRiver Midstream NEBC Connector GP Inc. (“NorthRiver”) applied to the Canadian Energy Regulator (“Regulator”), in accordance with Part 3 of the Canadian Energy Regulator Act (“Act”), for a certificate of public convenience and necessity authorizing the construction and operation of the NEBC Connector Project (“Project”), which consists of two parallel small diameter pipelines that are approximately 215 km in length and related infrastructure;
Whereas, on July 5, 2021, in accordance with Canada’s commitment to reconciliation under the Act, Treaty 8 and obligations regarding the duty to consult and accommodate recognized by section 35 of the Constitution Act, 1982, the Regulator’s Crown Consultation Coordinator initiated a Crown consultation process which included a hearing process designed to ensure the participation of potentially impacted Indigenous groups in decision-making, recognize the importance of their free, prior and informed consent, and allow them to raise their concerns with NorthRiver or with the Crown Consultation Coordinator;
Whereas, on October 18, 2023, having conducted a public hearing to review NorthRiver’s application and conducted an environmental assessment of the Project, the Commission of the Regulator (“Commission”) submitted its report on the Project entitled Commission of the Canada Energy Regulator Report OH-001-2022 - NorthRiver Midstream NEBC Connector GP Inc. – NEBC Connector Project (“Commission’s Report”) to the Minister of Natural Resources under section 183 of the Act;
Whereas the Governor in Council, having considered Indigenous concerns and interests raised in the Crown Consultation and Accommodation Report of December 1, 2023 and other evidence on the hearing record, is satisfied that the consultation process upholds the honour of the Crown and that the concerns and interests will be reasonably accommodated;
Whereas the Governor in Council, in its decision, has taken into account all the considerations referred to in subsection 183(2) of the Act and is of the opinion that those considerations set out in the Commission’s Report are those that appeared to be relevant and directly related to the Project;
Whereas the Governor in Council accepts the Commission’s recommendation that the Project, if implemented in accordance with the conditions set out in Appendix 1 to the Commission’s Report, is and will be required by the present and future public convenience and necessity and is not likely to cause significant adverse environmental effects;
And whereas the Governor in Council considers that the Project would improve the transportation capacity for existing and future production of natural gas, reduce emissions related to trucking and rail transportation of natural gas and will contribute to meeting Canada’s commitment to strengthen global energy security and is compatible with the Canada Net-zero Scenario set out in the report of the Regulator entitled Canada’s Energy Future 2023: Energy Supply and Demand Projections to 2050;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Natural Resources, under subsection 186(1) of the Canadian Energy Regulator Act, directs the Commission of the Canadian Energy Regulator to issue Certificate of Public Convenience and Necessity OC-067 to NorthRiver Midstream NEBC Connector GP Inc. in respect of the proposed construction and operation of the NEBC Connector Project, subject to the conditions set out in Appendix 1 to the Commission of the Canadian Energy Regulator’s report of October 18, 2023 entitled Commission of the Canada Energy Regulator Report OH-001-2022 - NorthRiver Midstream NEBC Connector GP Inc. – NEBC Connector Project.
EXPLANATORY NOTE
(This note is not part of the Order.)
Proposal
This Order in Council, pursuant to subparagraph 186(1)(a)(ii) of the Canadian Energy Regulator Act (CER Act), directs the Commission of the Canada Energy Regulator (Commission) to issue a Certificate of Public Convenience and Necessity to NorthRiver Midstream NEBC Connector GP Inc. (NorthRiver or ‘the proponent’) for the Northeast British Columbia (NEBC) Connector Project (the Project). This Order in Council also accepts the Commission’s 49 recommended conditions to the Project’s approval.
Objective
Pursuant to subsections 186(1) and 186(3) of the CER Act, the GiC must act on the Commission’s Recommendation within 90 days, and either direct the Commission to issue a certificate, dismiss the application, or refer the recommendation or any of the conditions back to the Commission for reconsideration. The Governor in Council (GiC) may, under subsection 186(3) of the CER Act, on the recommendation of the Minister of Energy and Natural Resources, extend the 90-day time limit for GiC decision by any additional period of time.
The Project, which consists of two parallel pipelines, one transporting natural gas liquids (NGL) and one transporting condensate, would provide transportation options necessary to support the continued development and anticipated growth of the Montney Resource Play (Montney) in the Western Canadian Sedimentary Basin (WCSB) in Northeast British Columbia. Currently, only one pipeline system transports NGL and condensate from this region to the primary market and beyond via the distribution network in Alberta.
The Commission found that NorthRiver’s supply projections, which show that NGL and condensate supplies currently exceed takeaway capacity of the incumbent pipeline system, leaving shippers to rely on truck transport to get their products to market, and that these supplies are expected to grow alongside projected increases in Montney natural gas production, demonstrate a long-term need for additional transportation capacity that can be met by the Project.
As a result, the Project would benefit Canada by enhancing shipper choice, improving overall transportation efficiency and safety, decreasing transportation costs, and reducing road congestion and vehicle emissions, while taking important Indigenous, environmental, health, and safety considerations into account. The Commission has recommended 49 conditions on the Project proponent to ensure compliance with the CER Act and ensure that the public interest is met.
Background
NorthRiver is a wholly owned subsidiary of NorthRiver Midstream Inc., an independent Canadian gas gathering and processing business. NorthRiver Midstream Inc. is a privately held subsidiary of Brookfield Infrastructure LP and of Brookfield Infrastructure Fund III (a US$14 billion global infrastructure fund).
On November 18, 2021, NorthRiver filed an application with the Canada Energy Regulator (CER) for a Certificate of Public Convenience and Necessity for the Project under section 182 of the CER Act. An application made under this section of the CER Act requires the Commission to make a recommendation to the GiC on whether to issue such a Certificate.
The Project
The Project consists of two parallel approximately 215-km-long small diameter pipelines from NorthRiver’s existing Highway Hub, approximately 25 km northwest of Wonowon, British Columbia (BC) to a riser site in the Gordondale area of Alberta, approximately 19 km east of the BC/Alberta border. The pipelines would transport NGL and condensate. The Project would also include certain ancillary facilities that would be constructed along the Project route. NorthRiver has estimated that the Project would cost $350.1 million (in 2021 dollars).
Approximately 195 km (91%) of the proposed route parallels existing linear disturbance. The Project is located on provincial Crown land and freehold (private) land in BC and Alberta, with approximately 61.5% on private land and 38.5% on Crown Land.
Commission’s Recommendation Report
The Commission received the Project application, which was filed on November 18, 2021, and determined it to be complete on August 31, 2022. Further to a written and oral hearing process, on October 18, 2023, the Commission submitted its Recommendation Report on the Project, entitled “Commission of the Canada Energy Regulator Report OH-001-2022 – NorthRiver Midstream NEBC Connector GP Inc. – NEBC Connector Project,” to the Minister of Energy and Natural Resources. In the Recommendation Report, the Commission found that the Project is and will be required by the present and future public convenience and necessity.
Accordingly, the Commission recommended that the GiC, by order, direct the Commission to issue a Certificate under section 186 of the CER Act authorizing the construction and operation of the Project, subject to 49 binding conditions. The conditions cover, among other things, construction activities, safety measures and standards, environmental monitoring, and matters related to Indigenous groups and rights protected by section 35 of the Constitution Act, 1982.
The CER Act, in subsection 183(2), lays out factors that the Commission must consider when making a public convenience and necessity determination. These factors include, but are not limited to, the environmental effects, including any cumulative environmental effects, the interests and concerns of Indigenous groups, as well as the effects on the rights recognized and affirmed under section 35 of the Constitution Act, 1982, the existence of actual or potential markets, and the economic feasibility of the pipeline.
The GiC is satisfied that the Commission has considered the factors laid out in the CER Act in a fair and balanced manner, weighing competing interests and points of view.
Implications
The GiC notes that the Commission is required to consider and weigh all relevant and material evidence on the record and must take into account all considerations that appear to it to be relevant and directly related to the pipeline, including the factors listed under subsection 183(2) of the CER Act, including economic and environmental factors, Indigenous knowledge and scientific information. The Commission assessed the overall public good the Project may create and its potential adverse aspects, and also weighed its various impacts. The Commission was cognizant that the public interest is both regionally and nationally based and is, therefore, understood to be inclusive of all Canadians. It is through this holistic and contextual lens that the Commission carried out its Project assessment, including making the findings in the Report and the determination that the Project is in the Canadian public interest.
Legal Framework
The Commission assessed the Project in accordance with the CER Act and relevant provisions of other applicable legislation, including the Species at Risk Act (SARA). The Impact Assessment Act (IAA) did not apply to this Project and therefore there was no relevant assessment referred to in section 92, 93 or 95 of the IAA to consider, as required by paragraph 183(2)(k) of the CER Act.
The Commission recognized that the context of the Project is unique, given the Yahey v. British Columbia 2021 BCSC 1287 (Yahey) decision. On June 29, 2021, the Supreme Court of British Columbia found that British Columbia (BC) had infringed on Blueberry River First Nations’ (BRFN) Treaty 8 rights. In the Yahey decision, the Court found that the province, by having a regulatory structure that could not prevent adverse effects and adverse cumulative effects on BRFNs’ Treaty 8 rights to meaningfully hunt, fish and trap within the BRFN traditional territory, infringed these rights. The Commission noted that the Project traverses the Blueberry River First Nations’ Claim Area, which was the area at issue in the Yahey decision. While the Commission acknowledged that the Yahey decision only binds the provincial government, the Yahey decision’s principles and reasoning are persuasive within the context of the Project application. As such, the Commission gave the Yahey decision due consideration in its assessment and recommendation regarding the Project application.
Lastly, the Commission assessed the application in light of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA), the CER’s commitments to reconciliation and its obligations regarding the duty to consult and accommodate, and the rights recognized and affirmed by section 35 of the Constitution Act, 1982. As such, the Commission designed the Hearing process, in consultation with the Proponent and Indigenous groups, to facilitate deep consultation with Indigenous groups.
Resource Availability, Economic Feasibility, and Financial Matters
The GiC expects the Project to benefit Canada’s economy by increasing the capacity to transport NGL and condensate from the Montney to primary markets in Alberta and export markets.
The Project is required to provide the additional transportation capacity necessary to move NGL and condensate from the Montney to primary markets in Alberta and to tie into transportation networks already in existence and accessible through the Gordondale riser site. Currently, there is only one pipeline that transports condensate and NGL from this area to Alberta, leaving shippers to rely on trucks to transport their product to market.
Transportation of natural gas products via these pipelines is preferred over trucking and would result in several benefits, including lower road congestion, increased transportation safety, and lower greenhouse gas (GHG) emissions otherwise associated with truck transportation. Economically, transport by pipelines would also allow for lower transportation costs for producers, higher producer revenues, and higher revenue and royalties paid to the provincial governments of BC and Alberta. In addition, by lowering fuel transportation costs, the Project could also improve energy affordability for consumers. Without the Project, the required truck volumes to transport these commodities to market would grow rapidly to keep pace with expected NGL production growth in the Montney region. The Commission was persuaded that there are adequate markets for the commodities to be delivered by the Project and that they would exist over the Project’s economic life, given the existence of both domestic and export markets.
The Project would also provide employment opportunities for local and Indigenous people, communities, and businesses, and secure revenues for various levels of government.
NorthRiver estimated that Project construction could result in $50.6 million in labour income, while annual operation is expected to result in $800,000 in labour income. NorthRiver also estimated that the Project’s direct contributions to GDP (including direct, indirect, and induced effects) would total $250.9 million over the construction phase and $4.6 annually over the life of the Project. Annual property taxes for condensate and NGL pipelines and related facilities are estimated to total $1.3 million, with the majority of that amount being paid to the City of Fort St. John, Peace River Regional District, District of Taylor, and Saddle Hills Country.
To increase the transparency of NorthRiver’s commitments regarding contracting and employment opportunities, the Commission recommended Condition 20, which would require NorthRiver to file, at least 30 days prior to construction, an update on Project-related employment, contracting, and procurement for Indigenous Peoples, including a detailed description of the measures that NorthRiver has used or will use to maximize anticipated opportunities for Project-related employment, contracting, and procurement for Indigenous Peoples and the measures taken to maximize the ability of Indigenous Peoples to take advantage of such opportunities.
The GiC accepts the Commission’s recommendation that the Project is required by present and future public convenience and necessity.
Considering the reports submitted on the Hearing record, which present different outlooks of Canada’s energy future, the Commission found that the Project would be used at a reasonable level over its economic life of at least 25 years. This conclusion included considerations of the uncertainty presented by possible pathways for Canada to achieve net-zero GHG emissions by 2050. As such, the GiC is satisfied that the Commission considered the availability of the commodity to the pipeline, the existence of actual or potential markets, and the economic feasibility of the pipelines, as required by paragraphs 183(2)(f), 183(2)(g), and 183(2)(h) of the CER Act and accepts the conclusions of the Commission.
Additionally, the Commission evaluated the financial resources, financial responsibility and financial structure of the applicant, the methods of financing the pipeline, and the extent to which Canadians will have an opportunity to participate in the financing, engineering, and construction of the pipeline, as required by paragraph 183(2)(i) of the CER Act. The Commission found that NorthRiver and its parent companies have the ability to finance the Project, including the construction and operation of the applied-for facilities, and that Canadians will have an opportunity to participate in the financing of the Project, albeit indirectly, if they choose to do so. Additionally, the Commission recommended Condition 23, which would require that NorthRiver file a financial resources plan that meets section 138 of the CER Act and the Pipeline Financial Requirements Regulations, which requires all CER-regulated companies to maintain sufficient financial resources to cover liability in the case of an unintended release. The GiC accepts the Commission’s findings regarding the ability of the proponent to finance the Project through construction and operation.
Environmental Effects and Cumulative Effects
Environmental Effects
The Commission assessed environmental effects of the Project, as required by paragraph 183(2)(a) of the CER Act and considered the proponent’s commitments to mitigation and monitoring. The Commission recognized the importance of an Environmental Protection Plan during both the construction and operational phase of the Project.
The Commission assessed the potential impacts of the Project on vegetation and wetlands (including old-growth forests and their management), fish and fish habitat, wildlife and wildlife habitat, air quality and greenhouse gases (GHG), and soil and soil productivity.
Having considered the evidence on the record, the Commission recommended several conditions regarding the potential environmental effects, in particular related to the construction schedule, pest management, reclamation, water course crossings, Fisheries Act authorization, hydrostatic testing, protection of species at risk (i.e., little brown myotis, northern myotis, and bank swallow), GHG emissions mitigation plan, quantification of construction-related GHG emissions, and a net-zero GHG emissions plan for Project operations.
Taking into account mitigation measures and commitments from the proponent, the Commission found that the residual effects of the Project on vegetation and wetland would be of medium significance. With regard to fish habitat and wildlife habitat, the Commission found that the Project’s residual effects would be low in magnitude. However, given existing high cumulative effects, the Commission found the significance on fish and fish habitat and wildlife and wildlife habitat to be of medium significance.
The Commission further found that the proponent adequately considered and reduced the likelihood and consequences of the effects of potential accidents and malfunctions (including an accidental spill) on the environment, and, as such, the Commission was satisfied that the proponent’s proposed mitigations are appropriate for the product to be transported and the environmental setting.
Having considered the Commission’s analysis in its Recommendation Report, the evidence presented by the proponent, as well as the concerns raised by Indigenous groups, the GiC is of the view that with the proponent’s mitigation measures and commitments and the Commission’s recommended conditions, the Project remains in the public interest.
Moreover, under paragraph 183(2)(j) of the CER Act, the Commission must evaluate the extent to which the effects of the pipeline hinder or contribute to the Government of Canada’s ability to meet its environmental obligation and its commitments in respect of climate change. The Commission determined the significance of residual effects of the Project to be low for air quality, and negligible for GHG and soil and soil productivity. The Commission further found that the Project’s contribution to atmospheric GHG would negligibly hinder Canada’s ability to meet its climate change commitments to reduce GHG emissions.
The GiC is satisfied with the Commission’s analysis and conclusions regarding the Project’s impact on Canada’s climate change commitments.
Requirements under the Species at Risk Act (SARA)
NorthRiver identified 16 species on Schedule 1 of SARA in the Project area. As a requirement of subsection 77(1) of SARA, the Commission notified the Minister of Environment and Climate Change that the Project, if approved, may result in adverse impacts to the critical habitat of two of these species, namely the little brown myotis and the northern myotis.
The Commission considered evidence from Environment and Climate Change Canada (ECCC) and the proponent and agreed that, while it is unlikely that the Project would result in the destruction of critical habitat for the two bat species, there is a high likelihood of bats using the Project Development Area. The Commission therefore recommended Condition 30, which would require the proponent to carry out a survey prior to any clearing activities during suitable roost periods for little brown myotis and northern myotis to minimize any impacts on the bats’ critical habitat during construction and to reduce impacts on the bats outside of critical habitat.
Given that the Project area also overlaps with bank swallow critical habitat grids, a species which is also listed on Schedule 1 of SARA, and in response to ECCC’s recommendation, the Commission recommended Condition 27, which would require the proponent to conduct a pre-disturbance bank swallow colony survey.
The GiC is of the view that the Commission has met its obligations under SARA. The Commission consulted with ECCC and considered the Project’s impacts on the critical habitat of species listed on Schedule 1 of SARA. Additionally, the Commission recommended several conditions to address the need for protections outside of the critical habitat.
Cumulative Effects
The Commission noted that past and existing developments in the area (e.g., by linear developments, forestry, oil and gas, and agriculture activities) have led to adverse and significant cumulative effects on wildlife and wildlife habitat, fish and fish habitat, and Traditional Land and Resource Use (TLRU) in the Project area. Similarly, in its application, NorthRiver assumed that cumulative effects are adverse and significant and committed to implementing offset measures to address the Project’s contribution to cumulative effects. Additionally, the proponent’s proposed Project route follows existing linear disturbances for approximately 91% of its length to minimize the Project’s adverse effects (direct and cumulative) by using already-disturbed land.
The Commission ensured that the process allowed for Indigenous groups and other participants to provide feedback on the proponent’s offset plans. Prior to making a determination on the completeness of the application, the Commission implemented several novel process steps, in recognition of the unique context of the application. This included a technical workshop on cumulative effects. During the Hearing process, at the request and with the support of several parties, the Commission held an in-person workshop to discuss the proponent’s offset plan. Comments and results from this workshop were then incorporated into NorthRiver’s Revised Offset Plan. Additionally, intervenors could ask the proponent questions on its Revised Offset Plan to be filed on the public Hearing record along with supplemental evidence. Further information on the Hearing process can be found in the “CER Hearing process” section further below.
NorthRiver’s approach to offsetting evolved throughout the course of the Hearing process, through input from Indigenous groups. In its Recommendation Report, the Commission accepted the proponent’s final cumulative offset plan, with some refinements and subject to legally binding conditions.
More specifically, the Commission accepted the first two components of the proponent’s final cumulative offset plan, namely the fee paid to the BRFN-BC Restoration Fund and the Treaty 8 Restoration Fund. The Commission refined the third component, the NorthRiver Land Securement Fund, by: changing the multiplier for the offset from one-to-one to two-to-one, providing an updated market valuation, inclusion to pay land transfer costs, the provision for a facilitator to guide the decision-making process, and extending the timing for redirecting any unallocated funds to the Treaty 8 Restoration Fund to 4 years.
The Commission recommended four conditions on the cumulative effects offset plan, which would require the proponent to submit a revised final cumulative effects offset plan (Condition 6), to confirm payment into the BRFN-BC Restoration Fund (Condition 34) and the Treaty 8 Restoration Fund (Condition 35), and report on progress on the Land Securement Fund (Condition 36).
The offset plan was a key consideration in the Commission’s public interest determination. The Commission stated that it is confident that the three components of the proponent’s revised final offset plan would likely lead to no net loss, at a minimum, and potentially net gain, relative to the Project’s contribution to new direct and indirect permanent disturbance on Crown land.
The GiC recognizes the unique context of the Project, as detailed by the Commission, and is satisfied that the Commission has thoroughly assessed cumulative effects in relation to the Project and tailored the Hearing process to be responsive to the concerns raised about cumulative effects. The GiC is confident that the Commission has meaningfully engaged with the proposals put forward by the proponent and Doig River First Nation in its alternative cumulative effects plan and with the concerns raised by participants in the Hearing process and is confident that the Commission considered all evidence and Indigenous knowledge submitted regarding cumulative effects and offsets and weighed these interests heavily when making its recommendation.
Project Operations
Under paragraph 183(2)(b) of the CER Act, the Commission is required to consider the safety and security of persons and the protection of property and the environment. As noted by the Commission in its Recommendation Report, “The CER holds its regulated companies accountable so that Canadians and the environment are protected throughout the lifecycle of each pipeline or project. That lifecycle includes the planning and pre-application phase, the application assessment and public hearing phase, the construction and post-construction phase, the operations and maintenance phase, and the eventual abandonment phase. Using a risk-informed approach, the CER conducts many types of compliance verification activities, including audits, inspections, compliance meetings, and reviews of condition filings, manuals, and reports. Each project is subject to the CER’s comprehensive regulatory oversight” (p. 77). The GiC is of the opinion that the regulatory and oversight functions of the CER throughout the lifecycle of the Project are capable of protecting the safety and security of the persons and the protection of property and the environment. The GiC is also satisfied that the Commission has adequately considered the safety and security of persons and the protection of property and the environment in its assessment of the Project application.
Health, Social, and Economic Effects
As required by paragraph 183(2)(c) of the CER Act, the Commission considered the Project’s potential on health, social, and economic effects, including with respect to the intersection of sex and gender with other identity factors.
The Commission found that with the application of the proponent’s mitigation measures, any residual effects on human health, infrastructure, and services (which includes housing and temporary accommodations, transportation, and local infrastructure and services) would be of low significance. Additionally, the Commission found that the proposed Project would add commercial benefits to local, regional, provincial, and national economies, and that the socio-economic benefits would benefit local communities and workers in Alberta and BC. In response to participants’ comments, the Commission included references to Indigenous women and 2SLGBTQI+ people, in Condition 17, which would require the proponent to file its monitoring of the Project’s potential positive and adverse socio-economic effects.
Additionally, the proponent has Indigenous Inclusion Plans and an Indigenous Contracting Initiative to include local communities and Indigenous groups in its workforce, and should the Project be approved, the Commission recommended Condition 14, which would require NorthRiver to develop a plan describing how Indigenous Peoples will participate in construction monitoring activities; Condition 41, which would require NorthRiver to develop a plan describing how Indigenous Peoples will participate in monitoring activities during Project post-construction and operations; and, Condition 20, which would require NorthRiver to provide an update on employment, contracting, procuring, and training.
The proponent indicated that it does not expect to need the use of temporary construction camps, however the Commission considered necessary Condition 18, which would require the proponent to provide additional details, such as the effects on the rights of Indigenous Peoples and mitigation measures to address these effects, should temporary construction camps be needed. Additionally, NorthRiver and its prime contractor have committed to creating and establishing clear guidelines for employee behaviour in accordance with company policies and regulatory requirements, including NorthRiver’s corporate-wide Diversity and Inclusion Plan with the goal of zero incidents of harassment, discrimination, or racism during pre, active, and post construction activities.
The GiC is of the view that the Commission has considered the health, social and economic effects of the Project, including with respect to the intersection of sex and gender with other identity factors and accepts the Commission’s conclusions.
Interests and Concerns of Indigenous groups and Effects on the Rights Recognized by Section 35 of the Constitution Act, 1982
As mentioned in the “Legal Framework” section, the Commission’s evaluation included an examination of the potential impacts on the rights of Indigenous groups, recognized and affirmed by section 35 of the Constitution Act, 1982, as well as the interests and concerns of Indigenous groups, including concerns regarding their current use of lands and resources for traditional purposes, as required by paragraphs 183(2)(d) and 183(2)(e) of the CER Act.
The Commission’s Hearing process was the primary forum for considering the concerns and interests of potentially impacted Indigenous groups and the potential impacts on their constitutionally protected rights. However, the CER acting as Crown Consultation Coordinator (CCC) also consulted with Indigenous groups in a concurrent and complementary way to the Commission’s process, as well as subsequent to the release of the Commission’s Recommendation Report in order to understand and address any outstanding Project-specific concerns. More details on the Consultation requirements can be found below in the “Consultation” section.
By way of these two processes, the GiC was made aware of the views of Indigenous groups related to potential impacts to Indigenous and Treaty rights and their interests and concerns. The main concerns expressed by Indigenous groups related to impacts to Indigenous and Treaty rights, land disturbance leading to avoidance by members of Indigenous groups and impacts on the ability to exercise Indigenous and Treaty rights. Indigenous groups’ concerns regarding cumulative effects and offsets included the extent of existing cumulative effects, information needs to assess cumulative effects, the proponent’s proposed offset plan, and the Commission’s conditions relating to the revised final cumulative effects offset plan for the Project. A more detailed discussion on cumulative effects can be found above in the subsection entitled “Cumulative Effects.”
Indigenous groups also had concerns with direct Project effects on wildlife, vegetation, and heritage resources, socio-economic effects, monitoring, reclamation efforts, and noted the need for Indigenous monitoring. Indigenous groups also had interests related to employment. Non-Project related concerns were within four broad areas: process and procedural concerns, including the relationship with the proponent; capacity support to participate in the Hearing process; commitment to Reconciliation and the application of UNDA; and, the overall integration of Indigenous knowledge in the proponent’s application, the Commission’s assessment and ultimately in the implementation of conditions.
The Commission found that effects of the Project on the rights of Indigenous Peoples would likely be short to long-term in duration, local to regional in geographic extent, moderate in magnitude, and high in total cumulative effects. Typically, in instances of high total cumulative effects the Commission would make a finding of high severity; however, because of proponent’s offset plan, the Commission found that the potential adverse effects of the Project on the rights of Indigenous Peoples would be of a medium degree of severity.
Additionally, the Commission recommended several conditions related to the concerns raised by Indigenous groups. These include, but are not limited to, Condition 21 (Heritage resources clearing) and Condition 15 (Outstanding traditional and resource use investigations and consultation, concerns and response tables), which would require the proponent to keep the Commission informed on outstanding Traditional Land and Resource Use (TLRU) studies and how the proponent will address any new concerns raised; Condition 8 (Construction Environmental Protection Plan), which would require the proponent to include any mitigation measures resulting from concerns raised in the TLRU studies; and, Conditions 14 and 41, which would require the proponent to file its monitoring plans for Indigenous groups related to each of the Project’s construction, post-construction, and operations phases.
In light of the information presented in the Recommendation Report and the Crown Consultation and Accommodation Report (CCAR), which contain details on the proponent’s mitigation measures and commitments and the Commission’s recommended conditions, the GiC accepts the Commission’s findings regarding the interests and concerns of Indigenous groups, as well as the effects on the rights recognized and affirmed by section 35 of the Constitution Act, 1982.
Consultation
CER Hearing Process
Following the filing of the Project application on November 18, 2021, the Commission issued a letter on January 11, 2022, noting it was assessing the completeness of the application, and if it determined the application to be complete, it would hold a public hearing and issue a hearing order.
Given the unique context of the Project, related to its location in the Blueberry River First Nations traditional territory, the Commission implemented several novel steps prior to making its completeness determination, which included three rounds of questions by the Commission to the proponent, as well as a process workshop and a technical workshop on cumulative effects.
On February 17, 2022, the Commission released a proposed hearing process and draft List of Issues for the parties and the CCC’s comments. These comments could be provided in writing or provided orally at a Hearing process workshop organized by the CER, which took place on March 9 to 11, 2022. A summary report of the workshop was placed on the Hearing record on April 14, 2022, for the Commission to consider in designing its Hearing process.
Given the significant concerns expressed by participants on cumulative effects and methodology, the Commission organized a technical workshop on cumulative effects assessment on June 20 and June 22 to 24, 2022. The purpose of the workshop was two-fold: for participants to discuss what possible additional filing requirements or guidance may have been necessary and to help inform the Commission’s view as to whether the cumulative effects offset plan in NorthRiver’s application was complete enough to proceed with the Project application.
On August 31, 2022, the Commission found NorthRiver’s application for a certificate was complete and set out additional information requirements that it would request of NorthRiver, including offsets and the rights of Indigenous groups.
On September 23, 2022, the Commission issued the OH-001-2022 Hearing Order, which set out all procedural steps in the Hearing, their deadlines, the List of Issues to be considered, and detailed guidance and procedures. In total, 13 intervenors and NorthRiver filed evidence, 11 Indigenous intervenors provided oral Indigenous knowledge, 10 intervenors and NorthRiver participated in the oral cross-examination, and 13 intervenors and NorthRiver provided argument. The CER received one letter of comment from the British Columbia Métis Federation. The Commission also invited Indigenous groups participating in the Hearing to present oral Indigenous Knowledge and sought their preferences regarding the manner of presenting, the timing, and the manner in which they would respond to questions.
In view of ensuring that the process was fair, efficient, inclusive and transparent, while being mindful of the 450-day legislated time limit, the Commission made a number of adjustments to steps and timelines to ensure that participants were able to meaningfully participate in the process. This included trying to avoid the summer months in response to feedback from some Indigenous groups, who noted that, during the summer months, a lot of their members are out on the land exercising their rights. The Commission was mindful of the impact of COVID-19 and its associated restrictions as well as the wildfires that affected many communities in BC and Alberta in 2023.
Additionally, at the request of several parties, the Commission held an in-person workshop to discuss NorthRiver’s offset plan, which took place from February 28 to March 2, 2023. Comments from the workshop were incorporated into the proponent’s revised offset plan. Participants in the Hearing process were then able to ask the proponent further questions on its revised plan.
The Commission was of the view that the overall Hearing process allowed parties to fully and fairly present their case, challenge evidence, and resulted in a procedurally fair hearing process.
The GiC is of the view that the Hearing process organized by the Commission was procedurally fair and took into the consideration the unique context of this Project application.
Crown consultations with Indigenous peoples
Canada has a common law duty to consult and, if appropriate, accommodate, when it contemplates conduct that might adversely impact Indigenous and Treaty rights, such as the approval of the Project.
The Commission’s Hearing process formed an important part of Crown consultation for the Project and was the primary forum for consultation.
Moreover, the CCC undertook consultation activities in conjunction with the Commission’s Hearing process to help gather Indigenous input into the assessment of the Project. The CCC consulted with 35 Indigenous groups on the Crown list before, during, and after the Commission’s Hearing process. Consultations began on July 5, 2021, and continued until November 17, 2023; these consultations also included Indigenous groups that did not participate directly in the Commission’s Hearing process so that their views could be considered by the Commission as part of its overall assessment of the Project.
The Commission had available for its consideration all the evidence put forward by Indigenous groups participating in the Hearing, as well as the evidence of all other participants in the Commission’s Hearing process, including submissions from the CCC.
As this is only the second certificate application under the CER Act, the role of the CCC in the hearing process continues to develop. The Commission noted that the CCC participation evolved throughout the Hearing process in response to requests made on the record. On January 20, 2022, while planning consultation activities, the CCC filed on the Hearing record a request to make three submissions over the course of the Hearing process. These submissions were used by the CCC to communicate potential concerns and suggested mitigations and accommodations raised during consultation activities. The CCC also aimed to provide ample opportunities for parties in the Hearing process to review and respond to this content and to keep the Commission updated on the status of consultation and any potential Project impacts that were addressed or remained outstanding. In response, the Commission directed the CCC to file the first submission on March 3, 2022, the second on October 18, 2022, and the third on May 25, 2023, as set out in the Hearing Order.
The Commission stated that it highly valued the Indigenous Knowledge it received from TLRU studies, oral Indigenous Knowledge sessions, written evidence, input during technical workshops, Crown submissions, and other filings.
The CER administered a Participant Funding Program (PFP) to facilitate the participation of Indigenous groups, landowners, and non-industry not-for-profit groups to participate in the public Hearing and, for Indigenous groups, the related CER Crown consultation process. At the time of the submission of the CCAR, the CER had signed Contribution Agreements with 27 Indigenous groups and was in the process of finalizing Contribution Agreements with the other eight Indigenous groups on the Crown list (N.B., valid expenses related to consultation that were incurred prior to the signature of a final Contribution Agreement are eligible under the terms of the Contribution Agreements). The provision of participant funding is an important component of the process as it assists the participation of Indigenous groups in the regulatory process and allows for more meaningful consultations.
The CER also gave Indigenous groups on the Crown list an opportunity to submit independent submissions, outlining their views on the Project to help inform the GiC decision. Independent submissions were received from six Indigenous groups.
Further details on the Crown consultation process and Indigenous groups’ concerns can be found in the publicly available CCAR. The CCAR builds upon the Crown submissions and includes Crown consultation activities before and after the release of the Commission’s Recommendation Report. The CCC noted that the Indigenous group’s concerns brought up in both the independent submissions and during Crown consultations were addressed during consultation and summarized in the CCAR.
The GiC is of the view that the Crown has offered meaningful two-way dialogue in a good faith consultation process, has provided responses to the potential impacts and concerns that were raised to address potential impacts on section 35 rights and interests. As such, the GiC is satisfied that the consultation process upholds the honour of the Crown, that its duty to consult with Indigenous groups about the Project was fulfilled, and that Indigenous concerns and interests have been considered and reasonably accommodated by the conditions set out in Appendix 1 of the Commission’s Report.
Landowners and land users
Subsection 214(1) of the CER Act allows the Commission, if certain criteria are met, to make exemptions from certain provisions of the CER Act related to determining the detailed route of the pipelines. A detailed route hearing is a Commission process for determining the precise route of a pipeline through a particular parcel of land within the corridor authorized by the Certificate.
One participant expressed concern with respect to the proponent’s request for an exemption under section 214 from the detailed route process on the grounds that granting the request would preclude them from participating in the Commission’s detailed route process, which would determine the method and timing of construction and the exact location of the Project on their land.
The Commission found that, on balance, the applied-for route corridor is appropriate and reasonably minimizes the impacts on the environment, Indigenous groups, landowners, and land users, while also providing the most efficient design for construction and operations. The Commission decided to grant NorthRiver’s section 214 exemption requests, except for a few parcels of land, which include the landowner’s tract. The Commission stated that it was persuaded by the argument that if it granted the exemption for every parcel of land, and clearing activities and early works were completed, that could lead to unnecessary ground disturbance on or in the vicinity of the property in question, prior to the landowner having an opportunity to participate in a potential detailed route hearing.
The GiC is satisfied that the Commission has adequately considered and addressed the concerns raised by landowners.
Federal and Provincial Governments
The CCC of the CER worked closely with the province of BC throughout the consultation process. The CCC also engaged the province of Alberta, and the province registered to participate in the Hearing; however, the province of Alberta did not actively participate in the consultation process, nor the Hearing.
Officials from ECCC were registered in the Hearing process as intervenors and recommended conditions related to pre-disturbance surveys suitable for bat habitat, which resulted in Condition 30. In response to ECCC’s recommendation regarding bank swallow critical habitat grids, the Commission recommended Condition 27, which would require the proponent to conduct a pre-disturbance bank swallow colony survey. For more information related to ECCC’s interventions, please refer to the “Requirements under the Species at Risk Act (SARA)” section above.
The GiC considered the information provided by federal departments and provincial governments in making its decision on the Project.
Contact
For more information, please contact Shirley Dawe, Executive Director, Crown-Indigenous Consultations Coordination, Nòkwewashk, Natural Resources Canada, at 403‑462‑1742.