The route of the pipelines of the proposed project would traverse significant portions of lands in Alberta and British Columbia that Aboriginal groups continue to use for traditional activities, uses, and practices, and for exercising various potential or established Aboriginal and treaty rights. The marine areas that would be potentially impacted by the project are also areas that are used for traditional purposes and claimed as part of traditional territories by Aboriginal groups.
The Panel was mandated to receive information related to the nature and scope of potential or established Aboriginal and treaty rights that may be affected by the project. The Panel was also mandated to receive information on impacts or infringements that the project may have on those rights. Further, this information was to be referenced by the Panel in its report. All evidence regarding the concerns and interests of Aboriginal groups was to be carefully considered by the Panel. Sections 6.5, 8.1, and 8.2 of the Joint Review Panel Agreement provide for these requirements. Potentially-affected Aboriginal groups were consulted and provided comments on the terms of the Joint Review Panel Agreement.
The goals of consultation with Aboriginal groups are to share information to assist in their understanding of the project, to provide opportunities to raise and understand any concerns, and to discuss how these may be appropriately addressed by the applicant.
The Panel assessed the design and implementation of Northern Gateway's consultation with potentially-affected Aboriginal groups. The Panel considered the company's activities to engage Aboriginal groups and to learn about their concerns. It also considered how Aboriginal groups responded to opportunities for consultation on the project and how Northern Gateway sought to understand, consider, and address the concerns of potentially-affected groups. The Panel considered how this input influenced the project's proposed design and operation. The Panel considered the concerns and views expressed by Aboriginal groups about Northern Gateway's consultation, including the adequacy of the company's consultation activities undertaken for the project.
Northern Gateway said that it engaged with over 80 Aboriginal groups and organizations. Forty-eight of these registered as intervenors in the joint review process and provided their comments, views, and evidence through written submissions and oral evidence to the Panel. The Panel reviewed and carefully considered all the evidence submitted by Aboriginal groups and organizations, Northern Gateway, other participants, and governments. Appendix 8 refers to information and evidence sources provided by Aboriginal groups who participated in the review process, and where this information can be found on the public record.
Throughout the report, the Panel has used the word "use" in the singular form when referring to traditional Aboriginal practices and activities. The Panel recognizes that Aboriginal groups use lands and marine areas, and land and marine resources, in a variety of ways. Where the Panel has used the singular term, this is intended to refer to all uses.
Northern Gateway committed to ongoing engagement with Aboriginal groups (First Nations and Métis belonging to a community, group, or organization) that may be affected by the Enbridge Northern Gateway Project. The company said that, through implementation of its Aboriginal engagement program, it committed to working with Aboriginal groups to provide them with information about the project, answer project-related questions, identify and address issues and concerns, and obtain community input for incorporation into project planning activities and the environmental and socio-economic assessment. Northern Gateway said that information gathered through its Aboriginal engagement program would enable it to "improve the project by avoiding, reducing, or mitigating, wherever reasonable and feasible, potential adverse effects and enhancing positive effects of the project on Aboriginal interests." Northern Gateway also committed to ensuring that Aboriginal groups "derive sustainable benefits from project-related activities that arise throughout project development, construction, and operations, including economic activity, equity participation, business development, and employment and training initiatives."
Northern Gateway said that it designed its Aboriginal engagement program to build and maintain effective working relationships with Aboriginal groups who may be affected by the project. Northern Gateway said that it adopted Enbridge Inc.'s Aboriginal and Native American Policy for its Aboriginal consultation program. The policy places emphasis on:
The company said that the objectives and principles of its Aboriginal consultation program were to:
In applying these principles and objectives, Northern Gateway said that it sought to understand and respect cultural diversity among Aboriginal communities, the varying levels of capacity among Aboriginal groups in the project area, and the need for fair treatment relative to issues such as project benefits. Northern Gateway said that it encouraged Aboriginal groups to participate throughout all phases of the project and to provide comments on all aspects of the project including planning, design, construction, and operations.
Northern Gateway said that, in 2005, many Aboriginal groups expressed an interest in establishing a formal relationship with the company, and it responded by offering memoranda of understanding or cooperation agreements to formalize such relationships. It said that these agreements were revised in 2008 in response to concerns raised by Aboriginal groups regarding the complexity and associated costs of entering into the memoranda and agreements. Northern Gateway said that it responded by developing a more functional protocol agreement that allowed for immediate access to capacity funding.
Northern Gateway said that the protocol agreements were intended to provide "the basis for a respectful and ongoing relationship between Northern Gateway and participating Aboriginal groups and facilitate dialogue on matters relating to effects and benefits of the project." It said that, in general, the protocol agreements:
Northern Gateway said that, as of December 2009, it had entered into 30 relationship protocol agreements, which represent a total of 36 Aboriginal groups. Since then, it continued to meet with Aboriginal groups to discuss signing protocol agreements, as well as amendments and extensions to existing agreements. Northern Gateway said that, in most cases, as its engagement progressed, the initial protocol agreements set out the groundwork for other agreements or memoranda of understanding that focused on other aspects of the project, such as education and training programs, or investment and economic opportunities. Northern Gateway said that, as of 2013, there were approximately 9 active protocol agreements in Alberta and British Columbia and 20 other agreements, letters of intent, or memoranda of understanding signed with Aboriginal groups. Northern Gateway noted that, in aggregate, it provided $10.8 million to Aboriginal groups, with $5.6 million of that amount provided to Aboriginal groups in British Columbia, including coastal Aboriginal groups. These amounts were in addition to funds provided to Aboriginal groups by the Canadian Environmental Assessment Agency.
Northern Gateway said that it met with Aboriginal groups individually to understand their specific views, interests, and concerns regarding the Enbridge Northern Gateway Project and to align opportunities for benefits stemming from the project with the specific interests of each group. It said that individual Aboriginal groups determined their level of participation for reviewing, discussing, and commenting on all aspects of the project. Northern Gateway said that, as part of project design, feasibility, and assessment, it initiated discussions with Aboriginal groups to undertake Aboriginal Traditional Knowledge studies with respect to the project. Northern Gateway also said that each community determined if it wished to proceed with an Aboriginal Traditional Knowledge study and whether it would work collaboratively with Northern Gateway or conduct an independent study.
The company said that some Aboriginal groups within the consultation area boundaries were not involved in Aboriginal Traditional Knowledge studies. Northern Gateway said that these groups included instances where: 1) offers to support Aboriginal Traditional Knowledge studies were made and later withdrawn due to the lapse in time or non-activity of the study; 2) an Aboriginal group declined the Aboriginal Traditional Knowledge offer; or 3) the offer was made to the Aboriginal group versus an organization that the specific Aboriginal group is affiliated with. Chapter 9 includes a detailed discussion of Northern Gateway's Aboriginal Traditional Knowledge program.
Northern Gateway said that its Aboriginal engagement program began during its feasibility studies, when various options and routes were being considered. Through the course of these early notification activities, Northern Gateway said that it initiated consultation by providing information to 171 Aboriginal groups and organizations in Alberta and British Columbia. When the project corridor was defined in 2005, Northern Gateway said that it focused its engagement activities on Aboriginal groups and Métis regions located within 80 kilometres of either side of the project corridor and the Kitimat Terminal. Northern Gateway said that it also engaged communities beyond these boundaries who identified themselves as having an interest because their traditional territory traversed the project corridor. The company said that this 160-kilometre-wide engagement area was established in consideration of the scope and scale of the project, and the nature and extent of the Aboriginal interests at stake. Northern Gateway said that Aboriginal groups were consulted based on:
Northern Gateway said that it included coastal Aboriginal groups in its Aboriginal engagement program. This included groups with interests in the Confined Channel Assessment Area, as well as groups with interests in the Open Water Area that are in proximity to tanker shipping routes calling on the Kitimat Terminal.
Northern Gateway said that, while all identified Aboriginal groups were afforded similar opportunities to participate in the project through direct consultations and by participation in Aboriginal Traditional Knowledge studies, it provided "greater consideration" to "those groups having an increased likelihood of impact to the exercise of Aboriginal and treaty rights, traditional lands, and land uses." Northern Gateway said that Aboriginal groups whose interests fell outside the boundaries of the 160-kilometre-wide engagement area were not engaged in extensive consultation activities unless specific project impacts were communicated to Northern Gateway by affected Aboriginal groups. In instances where there were no identified impacts, Northern Gateway indicated that it shared project information, responded to questions, and documented related concerns and interests for consideration in project development.
Northern Gateway said that it communicated with Aboriginal groups in various ways, fulfilling specific requests regarding preferred methods of communication. The company said that the following communication tools were used in its Aboriginal engagement program:
A list of Aboriginal groups that Northern Gateway identified as being potentially affected by the project, and which it subsequently engaged, is presented in Table 4.1. The table also indicates the status of any Aboriginal Traditional Knowledge study completed, and groups' participation as intervenors in the joint review process.
The status of Aboriginal Traditional Knowledge studies were characterized by Northern Gateway as:
Throughout the regulatory process, Northern Gateway submitted detailed updates on its ongoing activities with each engaged Aboriginal group. The information it provided included a background summary for each group, a brief summary of engagement steps it undertook, a summary of the status of any Aboriginal Traditional Knowledge programs, concerns raised by the Aboriginal groups, and Northern Gateway's responses to concerns raised.
Northern Gateway said that Aboriginal groups' broad concerns about the project were related to, among other things:
As a result of concerns raised and input received from Aboriginal groups, Northern Gateway said that it implemented a number of changes to the design and operation of the pipelines and the Kitimat Terminal, including:
Northern Gateway said that concerns were expressed by Aboriginal groups about potential project effects on aspects of Aboriginal culture, in particular:
The company also said that substantial baseline information was provided through Aboriginal Traditional Knowledge studies, including the importance and use of:
Northern Gateway said that, over the course of its engagement, it modified its Aboriginal engagement program to reflect Aboriginal interests and concerns generated once the project application was filed in 2010. Modifications included tailoring meetings and correspondence to address key differences between the marine and terrestrial traditional territories claimed and used by Aboriginal groups across the proposed pipeline right-of-way or adjacent to tanker shipping routes. For example, the company said that correspondence and meetings held with coastal Aboriginal groups addressed environmental issues and concerns or potential economic development opportunities unique to the geography of coastal British Columbia, including:
Northern Gateway also said that correspondence and meetings held with Aboriginal groups along the route of the pipelines in British Columbia and Alberta addressed environmental issues and concerns and potential economic development opportunities unique to the geography of terrestrial British Columbia and Alberta, including:
Northern Gateway also noted the initiatives it developed in response to the interests and concerns expressed by Aboriginal groups, including:
In developing these initiatives, Northern Gateway said that it took into account the need to address the varying capacities of Aboriginal groups. Northern Gateway also said that environmental practices used by adjacent linear projects, such as the proposed Kitimat Summit Lake Looping Project (also known as the Pacific Trails Project) and the proposed Kitimat liquefied natural gas (LNG) project, were considered in developing its proposed mitigation to address effects of project construction on traditional uses.
Northern Gateway also said that Aboriginal groups were invited to participate in a number of its other broader engagement initiatives. The company said that it contacted, based on geographical proximity to marine-related project activities, the following 10 Aboriginal groups regarding their interest and capacity to participate in the Quantitative Risk Assessment (QRA) Working Group:
The company said that a number of groups indicated by letter that they would not participate in the Quantitative Risk Assessment Working Group because they had concerns about the regulatory process or were opposed to the project. The company said that some groups requested that their attendance be noted as "observer" and indicated that their attendance should not be characterized as support for the project.
As described in Chapter 3, Northern Gateway established independent Community Advisory Boards (CABs) in 2009 to provide an opportunity for participants to gather and receive information about the project, identify and discuss key areas of regional interest or concern, and recommend improvements or enhancements to the project. Northern Gateway said that the Community Advisory Boards were intended to function independently and provide opportunities for meaningful exchange between Northern Gateway and interested parties, including Aboriginal groups. Northern Gateway said that Community Advisory Boards were established for five geographic regions along the project route: British Columbia North Coastal, British Columbia Northwest, British Columbia Central, Alberta North Central, and Peace Country. The company also said that the British Columbia North Coastal Community Advisory Board can continue to be a forum for issues to be addressed on a coastal perspective, and that Community Advisory Boards would remain active throughout the life of the project, or until the Community Advisory Board members decide to disband.
Table 4.1 Aboriginal groups engaged by Northern Gateway
intervenor = (i)
|Aboriginal Group||Aboriginal Traditional Knowledge study status (as of FEB 2013)||Protocol agreements*|
|Beaver Lake Cree Nation||n/a|
|Saddle Lake (Saddle Lake Cree Nation) (i)||Completed and released||DEC 2008
|Whitefish Lake (Whitefish Lake First Nation #128) (i)||Completed and released||JUN 2006
|Métis Settlements General Council||n/a|
|Buffalo Lake Métis Settlement||n/a|
|Kikino Métis Settlement||n/a|
|Métis Nation of Alberta Region 1||n/a|
|Métis Nation of Alberta Region 2||Completed|
|Kehewin Cree Nation||Completed and released|
|Alexander (Alexander First Nation) (i)||Completed||DEC 2005
|Enoch Cree Nation (i)||Completed||JUN 2009|
|Yellowhead Tribal Council||n/a|
|Métis Nation of Alberta:|
|Métis Regional Council – Zone IV of the Métis Nation of Alberta||Underway|
|Grande Cache Métis Local #1994 (i)||Completed and released|
|Gunn Métis Local #55||n/a|
|Alexis Nakota Sioux Nation (i)||Completed and released||MAR 2006
|Paul (Paul First Nation)||Completed and released||DEC 2005
|Masckwacis Cree Nation:|
|Samson (Samson Cree Nation) (i)||Pending engagement|
|Louis Bull (Louis Bull Tribe) (i)||Underway|
|Ermineskin Tribe (Ermineskin Cree Nation) (i)||Completed and released|
|Montana First Nation (i)||Underway|
|Michel First Nation (i)||Completed and released|
|Aseniwuche Winewak Nation||Completed and released||MAY 2009
|Nose Creek Settlement||Completed and released|
|Lesser Slave Lake Indian Regional Council:|
|Driftpile First Nation (i)||Completed and released||AUG 2008
|Sawridge (Sawridge First Nation)||Underway||OCT 2008
|Sucker Creek (Sucker Creek First Nation) (i)||Completed and released||AUG 2008
|Swan River First Nation (i)||Completed and released||SEPT 2008
|Kapawe'no First Nation||Completed||JUL 2008|
|Western Cree Tribal Council:|
|Duncan's First Nation||Completed and released||OCT 2008
|Horse Lake First Nation (i)||Completed and released||MAY 2010|
|Sturgeon Lake Cree Nation||Completed||OCT 2008
|Métis Nation of Alberta, Region 6 (Region VI Regional Council, Métis Nation of Alberta) (i)||Underway||APR 2010|
|Grande Prairie Métis Local 1990||Underway||APR 2010|
|Valleyview Métis Local #1929||Underway||APR 2010|
|Métis Nation of Alberta Region 5 (Region V Regional Council, Métis Nation of Alberta)||n/a|
|East Prairie Métis Settlement (i)||Underway|
|Northeast British Columbia|
|Kelly Lake Cree Nation (i)||Completed and released||JUL 2006
|Kelly Lake First Nation||Completed and released|
|Kelly Lake Métis Settlement Society (i)||Completed and released||DEC 2006|
|Treaty 8 Tribal Association/Council of Treaty 8 Chiefs||Underway||DEC 2008|
|Halfway River First Nation||Pending engagement||DEC 2008|
|West Moberly First Nations (i)||Pending engagement||DEC 2008|
|Saulteau First Nations (i)||Pending engagement||DEC 2008|
|Central British Columbia|
|McLeod Lake (McLeod Lake Indian Band) (i)||Completed and released||JUN 2009|
|Carrier-Sekani Tribal Council:||Completed and released|
|Saik'uz First Nation||Completed and released|
|Nak'azdli Band||Completed and released|
|Tl'azt'en Nation||Completed and released||NOV 2008
|Takla Lake First Nation||Completed and released|
|Nadleh Whut'en First Nation||Completed and released|
|Burns Lake Band (Ts'il Kaz Koh First Nation)||Completed and released||DEC 2008
|Wet'suwet'en First Nation||Completed and released|
|Stellat'en First Nation||Pending engagement|
|Yekooche (Yekooch First Nation)||Completed||JUL 2008
|Lake Babine Nation (i)||Completed and released||MAR 2009|
|Lheidli T'enneh (Lheidli T'enneh Band)||Underway||FEB 2009|
|New Caledonia Métis Association (New Caledonia Métis Association [North Central Region])||Underway|
|Prince George Métis Community Association||Underway|
|Northwest British Columbia|
|Nee-Tahi-Buhn (Nee-Tahi-Buhn Indian Band)||Completed and released||OCT 2008
|Skin Tyee Nation||Completed and released||APR 2006
|Cheslatta Carrier Nation||Completed and released||APR 2009|
|Gitxsan Hereditary Chiefs||Pending engagement||APR 2009|
|Office of the Wet'suwet'en (i)||Pending engagement|
|Tahtlan First Nation||n/a|
|Red Bluff Indian Band||n/a|
|Métis Nation of British Columbia (i)||Underway|
|Northwest BC Métis Association (North West Region 6, Métis Nation of British Columbia)||Underway|
|Tri-River Métis Association (North West Region 6, Métis Nation of British Columbia)||Underway|
|Coastal British Columbia|
|Kitselas First Nation (i)||Completed and released||AUG 2008|
|Kitsumkalum Band (Kitsumkalum First Nation) (i)||Scoping||JUN 2006
|Kitamaat Village Council (Haisla Nation) (i)||Completed and released|
|Hartley Bay (Gitga'at [First] Nation) (i)||Pending engagement|
|Gitxaala Nation (Kitkatla) (i)||Completed and released|
|Council of the Haida [Nation] (Old Masset Village Council, Skidegate Village Council) (i)||Pending engagement|
|Metlakatla First Nation (i)||Pending engagement|
|Lax Kw'alaams First Nation||Pending engagement|
|Kitasoo/Xaixais Nation (i)||Pending engagement|
|Coastal First Nations/Turning Point Initiative (i)||Pending engagement|
* Where there are multiple dates, this indicates a re-signing of the protocol agreement
Northern Gateway said that its intention for engaging with Aboriginal groups was to be a partner. The company said that it could be a positive influence and that it believed communities would be better off with the project proceeding. The company said that the equity agreements with Aboriginal groups were a foundation to start initial engagement and to provide ongoing revenue to groups to continue to engage with the company and to determine the best way to partner. The company said that the Aboriginal Traditional Knowledge studies undertaken for the project, where Aboriginal groups were interested in or participated in the field work, were a way of establishing relationships with Aboriginal groups through direct personal involvement in the studies that supported the project effects assessment.
Northern Gateway also said that it was important for the company to move the head office for Northern Gateway from Calgary to Prince George, in order to be part of that community. The company said that communities expected it to be involved in local activities. The company noted that community-based education and training activities supported by the project were often brought up by communities in discussions with the company. The company also said that it provided funding to Aboriginal groups so they could begin to develop businesses that could service all pipeline companies or other infrastructure, not just Northern Gateway.
The company said that part of its consultation process was to learn from communities about those things the communities find important, and that its engagement approach included involvement in community activities. For example, Northern Gateway said that one Alberta Aboriginal community held a naming ceremony for a senior executive of the company. The company also said that, in other communities, its executives attended a pow-wow, and took part in a sweat lodge. Northern Gateway said that, along the coast, it accepted invitations and participated in feasts prior to formal consultation meetings.
Northern Gateway acknowledged that direct engagement with certain Aboriginal groups was limited over the course of its consultation efforts. The company said that this was due, in most cases, to opposition to the project and reluctance to engage in discussions with Northern Gateway. The company said that, in some cases, Aboriginal groups formally requested that Northern Gateway stop sending information in relation to the project. Northern Gateway said that it responded to these groups by letter explaining that it was required to provide certain project information as part of the regulatory process. Northern Gateway said that it continued to provide project-related information to these groups. The company also said that it remained open to continue to engage in dialogue with these groups to the extent that they are reciprocally interested and willing. It committed to continue its engagement program, if the project proceeds, with a focus on relationship building and developing additional opportunities. Northern Gateway said that, as of February 2013, 7 of the 11 coastal Aboriginal groups it engaged for the project had not undertaken discussions with the company about Aboriginal Traditional Knowledge studies, and that the offer to complete these studies was still open.
With respect to its ongoing consultation with Aboriginal groups, the company said that, in March 2013, it revised its strategy around Aboriginal engagement, aimed at encouraging those who had not engaged with the company to open dialogue. The company said that the strategy would aim to involve meetings with senior executives from Northern Gateway and Aboriginal leadership with the intention of sitting and listening to perspectives from Aboriginal groups to determine what the company would need to do to open dialogue.
The Government of Canada indicated that federal departments actively participated in the joint review process, and referred any requests or concerns from Aboriginal groups on project-related issues to the Crown Consultation Coordinator.
The Government of Canada's Aboriginal Consultation Framework for the Northern Gateway Pipeline Project, filed on the record, includes five distinct phases, which provide opportunities for consultation between the federal government and Aboriginal groups before, during, and after the Panel's process:
The Government of Canada said that it encouraged Aboriginal groups to participate in all phases of the Panel's process to express their views about the project. The federal government said that it undertook various processes such as meeting, discussing, and corresponding with potentially-affected Aboriginal groups. It committed to taking a whole-of-government approach to consulting with Aboriginal groups regarding the Enbridge Northern Gateway Project in a coordinated manner that was integrated with the regulatory review processes for the project.
The Government of Canada said that it would rely on the joint review process to the extent possible to assist in fulfilling its legal duty to consult Aboriginal groups. It said that it communicated with Aboriginal groups that the Panel's process was the primary mechanism for Aboriginal groups to learn about the project and present their views to the federal government about:
The Government of Canada said that, if project-related issues that required Crown consultation could not be addressed through the Panel's process, it would consult directly with the potentially-affected Aboriginal groups on these issues.
The Canadian Environmental Assessment Agency said that it was responsible for coordinating the federal government's consultation with Aboriginal groups, and had appointed the Crown Consultation Coordinator to ensure that consultation activities were carried out in an effective manner.
Participant funding was made available for Aboriginal groups to support them in preparing for, and participating in, consultation activities with the federal government, and in activities associated with the Panel's process. The funding program and the amounts allocated were administered by the Canadian Environmental Assessment Agency. Details on the amounts awarded during the process are available on the Canadian Environmental Assessment Registry Internet site.
As required by the Joint Review Panel Agreement, the Panel's process was designed to facilitate the participation of Aboriginal peoples and to enable them to convey their views on the project to the Panel by various means. Aboriginal groups had the opportunity to participate through oral hearings, letters of comment, or by registering as intervenors. The Panel's process was structured so as to hear from all parties. Remote participation during the oral hearings was made available through the use of telephone and video links. Often, hearings were held in Aboriginal communities. The Panel sought, in particular, to hear from Aboriginal groups in a manner that was responsive to, and respectful of, Aboriginal traditions. The Panel provided the opportunity for oral evidence to be given, and many Aboriginal groups took the opportunity to present oral traditional evidence, such as that given by an Elder, or information that otherwise cannot be communicated in writing. A number of Aboriginal intervenors put great effort into providing their written and oral evidence to the Panel. This was demonstrated by group presentations, the use of expert witnesses and facilitators, and organizing groups of their members, youth, and Elders to share their stories, experiences, and concerns about the project.
Aboriginal intervenors also provided the Panel with written evidence. Detailed evidence was provided regarding their use of the lands, waters, and resources in the project area. Evidence was also provided on their specific histories, customs, and traditions. Aboriginal intervenors also provided detailed information on their wide-ranging and specific interests within their traditional territories. Numerous Aboriginal groups also participated in the oral questioning phase of the process, asking direct questions of Northern Gateway and federal government participants on various aspects of the project. In February 2013, Coastal First Nations indicated to the Panel that it was having difficulty engaging in the process and would no longer participate in the questioning phase of the hearing. Coastal First Nations said that it would not proceed as it had not been provided with the funding necessary to meaningfully or effectively engage in the process, and that it was disappointed with the nature of the process.
Appendix 8 refers to information and evidence sources provided by Aboriginal groups who participated in the review process, and where this information can be found on the public record.
Through information requests, oral and written submissions, and direct questioning, Aboriginal groups raised a number of concerns regarding the consultation undertaken by Northern Gateway and the Government of Canada.
A number of Aboriginal groups said that Northern Gateway's consultation process failed to address some, or all, of their concerns about consultation for the project. In oral evidence, Driftpile First Nation said that, while it had met with Northern Gateway, there had not been adequate or meaningful consultation, that concerns must be properly accommodated, and that this had not yet happened. Coastal First Nations said that Northern Gateway's process for engaging with First Nations, as set out in its project application, was flawed and incomplete. Michel First Nation indicated that Northern Gateway's approach to consultation, which it described as "pan-Aboriginal," was an inappropriate approach.
Aboriginal groups were also critical of Northern Gateway's response to their specific concerns regarding the impacts of the project. Some of these concerns dealt with Aboriginal title, jurisdiction, consent, and governance. They noted that Northern Gateway's reliance on standard mitigation did not address their concerns, nor did they consider this type of dialogue to be consultation.
Gitxaala Nation, for example, said that the company had not engaged in any meaningful dialogue with Gitxaala regarding any specific mitigation measures that might address Gitxaala's concerns about the impacts of the project. It said that, for the most part, Northern Gateway's approach to discussing these matters was to present a completed analysis and plan, and to ask for comments without providing adequate time or resources for the Nation to do its own assessment or present a full list of concerns. The Gitxaala Nation said that a meaningful process of consultation should be able to accommodate culturally-relevant concepts such as ayaawx (traditional laws of the Gitxaala Nation), adawx (oral tradition, that establishes authority and jurisdiction), and gugwilx'ya'ansk (inheritance) within the Gitxaala territory.
Haisla Nation said that the broad and generally-phrased concerns that Northern Gateway summarized failed to properly characterize the Haisla Nation's concerns with the project, including Haisla's claim of Aboriginal title to the land proposed to be used for the pipelines and the Kitimat Terminal.
Swan River First Nation said that there was little evidence that the overarching concerns, as presented in the application, had been addressed, let alone resolved, and that the Aboriginal Traditional Knowledge study that Northern Gateway carried out with the First Nation appeared to have been undertaken only as a "demonstration of consultation."
Some Aboriginal groups disagreed with Northern Gateway's approach to how consultation should be undertaken, and contradicted how the company characterized its relationships with Aboriginal communities. The Giga'at First Nation did not believe that any sort of a relationship was established with the company, and that it was inappropriate that it was the last community to be approached by Northern Gateway. The Gitga'at First Nation said that, when company representatives visited the community, its leaders "welcomed every person that got off that plane as if the home that you were visiting was your own, and you were treated with respect, even though we knew that all of our neighbours had already been consulted with." The Métis Nation of Alberta – Region 6 said that consultation is not just about talking and doing studies, but that the company needs to be better informed about who the Métis people are, acknowledge that the project may potentially impact their way of life, and do more to encourage community involvement.
During questioning, various Aboriginal groups asked Northern Gateway how it determined which communities to consult with. In response, Northern Gateway reiterated its approach outlined in its application. The company also reiterated its commitment to engaging with Aboriginal groups located within the boundaries of the 160-kilometre-wide engagement area, or whose traditional territory may overlap with the project area.
Northern Gateway said that it would mitigate impacts on Aboriginal uses and activities through project design and that it would "always provide an opportunity for further dialogue and consultation" on these issues and interests. Northern Gateway committed to continue its consultation throughout the operational life of the project, should it be approved.
During the course of the hearings, the Panel heard many views related to the Crown's legal duty to consult with Aboriginal groups. Some Aboriginal groups were critical of the federal government's approach to consultation. Many Aboriginal groups expressed dissatisfaction with the federal government's reliance on the Panel's process as a means for consultation. Several groups stated that, by relying on the Panel's process and Northern Gateway's consultation efforts, instead of meeting with individual Aboriginal communities, the Crown had failed to fulfill its legal duty to consult. Some of the concerns included:
In response to the specific and general concerns raised, the Government of Canada said that:
Aboriginal groups asked about the type of consultation that would occur once the Panel has released its report. The federal government said that, during Phase IV consultation, it would "afford to all the groups an opportunity to make their views known about whether the impacts on their rights are accurately characterized, to figure out what their views are on whether their recommended mitigation measures might address those impacts, and to find out from groups whether there are any outstanding issues." The federal government also said that:
The Panel described the principles of thorough and effective consultation in Chapter 3. The Panel believes that, in order for consultation between an applicant and potentially-affected parties to be a thorough and effective process, the applicant must provide timely and appropriate opportunities for those potentially affected to learn about a project, provide their comments and concerns, and to discuss how those concerns may be addressed. An applicant must be genuinely responsive to the input it receives. It must demonstrate that it has considered the information offered by potentially-affected groups, and must effectively communicate the extent to which it has responded to the concerns it heard.
Consultation is based on a foundation of trust, mutual respect, understanding of values, and relationship-building. Aboriginal groups that may be affected by the project have a responsibility to respond to opportunities for consultation with an applicant in order to communicate any concerns they may have, and to discuss how these can be addressed. All parties have an obligation to seek a level of cultural fluency, in order to better understand the values, customs, needs, and preferences of the other parties involved in the consultation process. The Panel notes that examples of relationship-building associated with consultation were demonstrated through invitations to, and participation in, cultural events.
All parties may be required to adjust their expectations in response to the information, concerns, and interests raised and considered through the process. The Panel observed that this approach did not always occur in this proceeding. The Panel notes that, as the review of the project proceeded, Northern Gateway endeavoured to adjust its approach to consultation to meet the goals of thorough and effective consultation, and adapted its efforts to understand how the project may affect the interests of Aboriginal groups in the project area.
The Panel notes that there were differing perspectives among a number of Aboriginal groups on what constitutes a thorough and effective process of consultation with the applicant. There were also different views among some parties about their respective roles and responsibilities in the consultation process. The Panel recognizes that each party enters the consultation process with distinctive cultural perspectives, and that these differences can present challenges to effective dialogue. The Panel finds that it is important for the applicant and potentially-affected parties to recognize and understand their respective roles and responsibilities for achieving meaningful dialogue during consultation.
The Panel also finds that it is critical for all parties to understand the role of consultation in this regulatory process. The purpose of this consultation between the applicant and potentially-affected parties is to understand the impact of the proposed project on Aboriginal use and activities and how these potential impacts can be addressed.
With respect to Northern Gateway's consultation with Aboriginal groups, the Panel finds that Northern Gateway met the requirements of the National Energy Board's Filing Manual. Since 2002, as part of the initial phases of the consultation process, the company provided project information to Aboriginal groups. This included information about the project's design, operations, as well as its potential environmental, social, and economic effects, including potential economic benefits to Aboriginal groups. The Panel also finds that the company continued to learn more about Aboriginal communities and their concerns related to the project. This learning caused the company to modify its consultation process to better understand the interests and concerns raised by Aboriginal groups. The Panel notes that Northern Gateway continued to provide project information to those Aboriginal groups who chose not to engage with the company throughout the consultation process.
The Panel finds that the criteria used by Northern Gateway to identify potentially-affected Aboriginal groups were appropriate. The Panel notes that the company's engagement area was established in consideration of the project's proximity to areas of traditional use along the proposed right-of-way, and within the Confined Channel Assessment Area and Open Water Area. The Panel also finds that Northern Gateway offered all potentially-affected groups adequate opportunities to raise any concerns they had with the company, and to provide information about their interests in the project area. The Panel notes that this included the opportunity for each potentially-affected Aboriginal group to complete or participate in Aboriginal Traditional Knowledge studies, in order to identify potential effects on the current use of lands, waters, and resources for traditional purposes, and to identify and discuss measures to reduce or avoid potential adverse project effects.
The Panel finds that Northern Gateway considered the information that was provided by Aboriginal groups about their use of the lands, waters, and resources, and made a number of changes to the design and operation of the project as a result of this information. These changes include relocating facilities onto Reserves No. 134 and No. 134A of the Alexander First Nation, and onto Reserve No. 232 of the Alexis First Nation, at their request. As well, a number of watercourse crossings were relocated or revised based on concerns raised by Aboriginal groups.
The Panel acknowledges that Northern Gateway and Aboriginal groups entered into protocol agreements and subsequent memoranda agreements for the project, beginning in the early stages of project design and planning. The Panel is supportive of the aims of these agreements to clarify the nature of the relationship between the parties, to outline any support necessary to aid in discussion about the project, and to facilitate cooperation. A benefit of these types of agreements could be to establish roles and responsibilities that support thorough and effective consultation. The Panel views such agreements as important demonstrations of mutual commitment to cooperatively discuss and address issues relating to the Enbridge Northern Gateway Project.
The Panel has considered the extent to which potentially-affected Aboriginal groups responded to Northern Gateway's consultation efforts. The Panel notes that some Aboriginal groups, including a majority of coastal Aboriginal groups, chose not to participate in some aspects of Northern Gateway's consultation program, such as Aboriginal Traditional Knowledge studies. The Panel notes that Northern Gateway did not have the benefit of such information from these groups early in its project design phase and assessment of potential effects.
A number of Aboriginal groups raised concerns about the adequacy of Northern Gateway's efforts to engage them and to discuss their concerns. Some groups felt they were not given sufficient opportunities to discuss their concerns, or adequate time to fully review information about the project. Some groups felt that their input and concerns were not fully considered by Northern Gateway. Some groups were also critical of the federal government's approach to its legal duty to consult, and in particular, its reliance on the Panel's process. The Panel notes that some groups considered such an approach inappropriate, and expressed the view that consultation and accommodation by the Crown should precede consultation by the applicant. The Panel notes that the Government of Canada provided evidence that it had not delegated to Northern Gateway aspects of Canada's consultation or accommodation obligations.
The Panel acknowledges that Aboriginal groups engaged by Northern Gateway did not always share a common view with the company about their respective roles and responsibilities. The Panel notes that, where such views become polarized, meaningful dialogue can be difficult to achieve. The Panel acknowledges that this can result in the withdrawal of groups from engagement with the company, or from ongoing participation in the regulatory review process. The Panel believes it is critical for all parties to understand their respective roles and responsibilities in respect of the company's consultation activities, and participation in the regulatory review process. The Panel finds that, when parties do not participate because they have concerns about the regulatory process or are opposed to the project, the opportunity has been lost to present their views to the Panel and to have them considered during the Panel's deliberations.
The Panel notes Northern Gateway's commitment to ongoing engagement with Aboriginal groups throughout the project's lifespan, including with coastal Aboriginal groups and others that have not yet participated in all opportunities provided to discuss the project. The Panel requires Northern Gateway to report on aspects of its ongoing consultations with Aboriginal groups, including consultations in developing a number of operational plans and employment-related programs.
With Northern Gateway's commitments and its compliance with the Panel's conditions, the Panel finds that Northern Gateway can effectively continue to engage and learn from Aboriginal groups that chose to engage, and address issues raised by Aboriginal groups throughout the project's operational life.
In accordance with the Joint Review Panel Agreement, the Panel received evidence from Aboriginal groups related to the nature and scope of potential or established Aboriginal and treaty rights that may be affected by the project, and the impacts or infringements that the project may have on those rights. This evidence is found throughout this report and the public record. The Government of Canada stated that it has engaged in consultation activities with Aboriginal groups. The Government of Canada also said that "it will rely on the Joint Review Panel process to the extent possible to assist in fulfilling its legal duty to consult Aboriginal groups." The Panel notes that the federal government has stated that it intends to consult with Aboriginal groups after the issuance of this report. The Panel offers no views in relation to the consultation activities undertaken by the Government of Canada to date, or any future consultation that it will undertake, with Aboriginal groups.
Northern Gateway said that its understanding of Aboriginal rights in Canada is based on the case law, and that such rights are derived from Aboriginal customs and traditions. It said that the Supreme Court of Canada has described Aboriginal rights as "the collective rights to participate in an activity that is an element of a practice, custom or tradition, integral to the distinctive culture of the Aboriginal group claiming the right." Examples of Aboriginal rights recognized by various courts, as noted by Northern Gateway, include subsistence hunting, fishing, and trapping.
With respect to treaty rights, Northern Gateway said that these are determined by the terms and conditions of the treaty in question. The project would traverse lands within Treaty No. 6 and Treaty No. 8 in north central Alberta and portions of northeastern British Columbia. Northern Gateway said that the rights determined under these treaties include "the right to hunt, trap, and fish on unoccupied Crown lands as well as other rights related to the establishment of Reserves."
In its evidence, Northern Gateway provided a detailed rationale for its approach to assessing the potential impacts of the project on rights and interests of Aboriginal groups:
"The exercise of Aboriginal and treaty rights is inextricably linked with use of the natural environment. For example, the treaty right to hunt on unoccupied Crown lands is affected by access to those lands, and the abundance of wildlife available for harvesting. The same can be applied to harvesting of fish (and other aquatic and marine resources) and vegetation. For this reason, it is logical and appropriate to base assessment of the project effects on Aboriginal and treaty rights on the extensive studies done in respect of the project effects on the biophysical and human environments generally. It is also logical and appropriate to supplement such assessment with information received from participating Aboriginal groups identifying site specific activities, features of cultural importance, harvesting patterns and timing, travel routes and spiritual areas and sites, and to then identify measures to avoid and reduce potential project effects on those activities or features either now or in the future. This is the approach used by Northern Gateway."
Northern Gateway said that it did not take a position on the merits of claims asserted by Aboriginal groups in respect of Aboriginal rights, including title. Northern Gateway said that, instead, it sought to "identify the interests and concerns underlying those claims so that the project could be developed in a manner that achieves alignment with those groups to the extent practical." The following description was provided as an example of Northern Gateway's approach:
"For example, rather than engaging in an analysis of whether a particular group has the Aboriginal right to fish at a particular watercourse crossing, the policy of Northern Gateway has been to assume that members of the group may have such a right, to assess whether a pipeline crossing at that location would have effects on the underlying fisheries resource, and to identify mitigation measures to limit such effects."
Northern Gateway said that it used this approach in respect of other components of the environment and associated issues, such as potential effects of the project on wildlife (and, hence, Aboriginal hunting and trapping), marine species, vegetation, and surface water quality.
Northern Gateway said that it used three major information sources to collect information on rights and interests of Aboriginal groups and to inform its assessment of the potential effects of the project on traditional land and marine uses and resources:
Northern Gateway said that information included in Aboriginal Traditional Knowledge studies completed for the project was used in Northern Gateway's Environmental and Socio-Economic Assessment. The company said that this was used to inform the scoping and assessment of issues, including project effects on traditional use (such as harvesting areas, sacred sites, habitation areas, or travel routes), as well as commercial trapping and hunting, which includes Aboriginal people.
Northern Gateway said that the potential effects of the project on traditional use of lands, waters, and resources by Aboriginal people were assessed through its project effects and cumulative effects studies on various components of the biophysical environment. It said that this included an assessment of potential project effects on "resources commonly understood to be of importance for Aboriginal people or that support the land base and habitat conditions essential to the sustainability of these resources."
Northern Gateway said that it took into account issues raised by Aboriginal people, information on traditional land use and ecological knowledge, and recommendations provided by Aboriginal groups on project design changes and mitigation. It also said that it took into account in its assessment species, species groups, or indicators that are, or represent, resources commonly understood to be of importance to Aboriginal people. Northern Gateway said that examples of the resources understood to be of importance included wildlife species (such as woodland caribou and grizzly bear), groups of fish (such as salmon and herring), and vegetation (such as old growth forests, rare plants, and wetlands).
Northern Gateway said that, based on its work in developing the Environmental and Socio-Economic Assessment, including Aboriginal Traditional Knowledge work, it determined that routine project activities during construction, operation, and decommissioning are not likely to cause significant adverse effects on terrestrial or marine environments. Northern Gateway said that, as a result, it is "confident that the project will not have a significant adverse effect on those who depend on the land and water for sustenance, including Aboriginal groups who may exercise their Aboriginal or treaty rights in the use of land or water for traditional purposes."
The company said that, in the event of a malfunction or accident, specifically a large spill associated with the pipelines, the Kitimat Terminal, or project-related marine transportation, there is the potential for significant adverse effects to occur on some biota and the ecosystems that support these species. The company said that the impact would depend on the setting, conditions, magnitude, and duration of the spill. Northern Gateway said that these effects could, in turn, impact resources commonly understood to be of importance and significance to Aboriginal groups. Northern Gateway said that the exact nature of these effects could differ widely as a result of many variables, as would the approach and success of cleanup operations, habitat rehabilitation, and species recovery. It provided detailed evidence in support of its conclusion that the probability of large spills is considered to be low.
Northern Gateway said that it sought to engage Aboriginal groups in discussions of spill response planning for the pipelines. It said that it would continue to engage in discussions of spill prevention and emergency response throughout the project to ensure, to the extent possible, that Aboriginal use, interests, and culturally-important resources are protected in project design, operation, and spill response. Northern Gateway committed to involving Aboriginal groups in the development of more detailed spill response plans, such as Geographic Response Plans, Community Response Plans, control point mapping, and in finalizing environmental sensitivity atlases.
Northern Gateway said that it understands the principal concerns of potentially-affected Aboriginal groups to include:
Northern Gateway said that, while it is appropriate to use western scientific methods to assess these concerns, a number of other concerns were expressed by potentially-affected Aboriginal groups. These included changes in the perception of safe access or harvesting by Aboriginal people and food quality; changes in use of territorial lands by clans, houses, or families and associated harvesting activities; and changes to Aboriginal governance systems and associated management of natural resources.
Northern Gateway filed summaries of the concerns and issues raised by Aboriginal groups as part of its evidence on consultation with Aboriginal groups, including Aboriginal Traditional Knowledge studies. More information regarding Northern Gateway's approach to the assessment of potential effects on traditional land and marine use can be found in Chapter 9.
Northern Gateway committed to a variety of project design features, mitigation measures, and environmental management measures to minimize environmental effects on Aboriginal groups' use of the lands and waters, over the life of the project. Northern Gateway also committed to including community input in the design of these features and measures.
For the pipelines, Northern Gateway said that access across the right-of-way and temporary workspaces would be limited in many cases to very short periods of time during trenching and pipe installation (i.e., days to weeks). Northern Gateway committed to work with Aboriginal groups and individuals, such as trappers, to develop measures to minimize effects on access, especially during key periods of use. It also committed to developing compensation for any trapping and harvesting losses.
Northern Gateway said that the terminal area would be fenced for security reasons and would be closed to access by individuals other than authorized personnel. It said that, as a result, access by the Haisla Nation, and possibly other coastal First Nations (such as Kitsumkalum and Kitselas), would be affected. Northern Gateway said that an access road would be constructed around the terminal area prior to construction to ensure that access to Bish Cove and Emsley Cove is maintained.
Northern Gateway said that, with operational measures and additional mitigation, routine vessel operations in the Confined Channel Assessment Area are not expected to alter the ability of Aboriginal people to access resources or cultural sites. As an example, it said that all tankers and associated escort tugs would be required to reduce speed within the Confined Channel Assessment Area and its approaches. It also said that a whale spotting vessel would be able to assist in identifying potential conflicts with fishers and small vessel traffic in the core humpback whale area for 6 months of the year. Further details are provided in Chapter 8.
In addition, Northern Gateway committed to work collaboratively with Aboriginal fishers and other fishers through the Fisheries Liaison Committee to:
Northern Gateway said that, during construction and routine operations, there should not be significant adverse effects on the ability of Aboriginal people to physically access resources, or land or water that support these resources, given the project design features and proposed mitigation measures. More information on the interaction between the project and the activities within, and uses of, the project area by Aboriginal groups, can be found in Chapters 8 and 9.
Northern Gateway committed to work with Aboriginal groups during the detailed engineering, construction, and operational phases of the project to address site-specific concerns. Northern Gateway committed to undertake additional engagement with Aboriginal groups to verify their views regarding the proposed detailed pipeline route, and to identify and address site-specific issues and interests, such as proximity to mineral licks, berry-harvesting sites, medicinal plants, burial sites, or intersecting trails.
Northern Gateway also committed to ongoing Aboriginal engagement during construction and operations to address, whenever possible, concerns regarding potential project effects on traditional uses and cultural resources. It said that this would include opportunities for Aboriginal involvement in:
Northern Gateway said that these programs would have the effect of "reducing potential adverse project effects on Aboriginal rights and interests by reducing effects on the resources utilized in pursuit of such interests."
With regard to addressing some of the concerns raised by Aboriginal groups, Northern Gateway said that predicting changes in perceptions, the use of traditional territorial lands, and Aboriginal governance systems requires direct input and involvement from communities, clans, houses, or individuals.
The Joint Review Panel Agreement provides that the Panel receive information from Aboriginal peoples. Aboriginal groups provided a large amount of information to the Panel, including evidence in respect of their rights and interests, and this evidence is throughout the entire record of the proceeding.
The Panel has provided within this section of the report a high-level summary of the evidence provided by Aboriginal groups. Appendix 8 refers to information and evidence sources provided by Aboriginal groups who participated in the review process, and where this information can be found on the public record. The Panel notes that identifying and referring to specific passages within the record could lead to other direct and indirect references being overlooked. Anyone wishing to fully understand the context of the information and evidence provided by Aboriginal groups should familiarize themselves with the entire public record.
Key concerns raised by Aboriginal groups about the project related to potential impacts on:
Through oral and written evidence, Aboriginal groups provided information related to their use of the lands and waters along the pipeline and shipping routes. They raised concerns about how project construction, operation, and potential spills could potentially hinder or limit access to their traditional territories. The Panel heard about specific locations where Aboriginal groups have exercised or currently exercise their traditional activities, harvesting land and marine resources through means such as fishing, hunting, trapping, and gathering. Groups provided information on how much of their diet consists of traditional foods and indicated that they have concerns that these resources would be contaminated due to increased industrial activity and potential spills. The Panel heard about specific harvesting, historic, and cultural sites that community members travel to; how community members journey to these sites; and that the activities they participate in play a vital role in the transfer of knowledge between generations. The Panel also heard that all things are connected and potential interactions and impacts need to be considered holistically.
Both inland and coastal Aboriginal groups shared evidence regarding their traditional governance systems, including the importance of traditional feasting and naming practices and how these are connected to the lands and waters that surround them. They also described their cultural knowledge and stories of their territories and their perspective of the associated resource management and stewardship responsibilities with respect to lands and waters. Aboriginal groups said that the very prospect of the Enbridge Northern Gateway Project was already causing distress to local communities, due to their views of the potential risks of the project. They pointed out that the complexity of community ties that are maintained through harvesting and distributing foods, including trade with other communities, would be significantly affected by even a small spill. Finally, they noted that a spill could lead to an out-migration from the area, negatively impacting support networks and the community.
Aboriginal groups shared information regarding their current economic activities, which included forestry, fishing, seafood processing, and eco-tourism, among others. They highlighted the importance of established Aboriginal-run businesses and noted that they are working on future economic development strategies to develop more employment opportunities for their communities. Groups noted the importance of natural resource management strategies which promote economic development in industries such as forestry and commercial fisheries, and which are based on principles of conservation and sustainability. Coastal groups spoke of conservation initiatives, such as the Coastal Guardian Watchmen Network, whose members monitor the environment and waterways along the coast, and often educate visitors about Aboriginal history and culture. Aboriginal groups said that such initiatives could not compatibly proceed with a project such as the Enbridge Northern Gateway Project.
Some Aboriginal groups were critical of Northern Gateway's approach to assessing project effects on the rights and interests of Aboriginal groups. Groups noted the lack of local knowledge incorporated in the project application. Members of the Haida Nation pointed to the work that the Council of the Haida Nation has been doing in marine planning. They said that, as part of this planning, they sought to bring Haida marine traditional knowledge forward in a manner that was respectful to Haida people, while recognizing its complexity and the sensitivity of this knowledge. They questioned whether Northern Gateway had included any of this information or sensitivities in its application.
In reply, Northern Gateway said that the Living Marine Legacy Reports submitted by the Council of the Haida Nation were focused primarily on the shoreline areas of Haida Gwaii as opposed to the Open Water Area. As the shipping lane for the project is 60 to 70 kilometres from the shoreline of Haida Gwaii, Northern Gateway said that it focused its assessment on the Open Water Area. It used the more general information provided in Pacific North Coast Integrated Management Area (PNCIMA) reports, which included data from the Haida Nation's marine planning reports, for its assessment of impacts to the Open Water Area. It also said that the traditional use information provided by the Haida Nation after the application was filed would be incorporated into coastal sensitivity mapping and be an integral part of spill response planning. Northern Gateway said that it reviewed all the information provided by the Haida Nation to ensure that it was understood by the company, and that their concerns were addressed through the mitigation that Northern Gateway had proposed in its environmental assessment. Northern Gateway said that the information provided by the Haida Nation was consistent with the information it had included in its application regarding the environmental impact on the resources used by Aboriginal communities. The company also said that it had difficulty engaging with the Haida Nation, but would welcome further dialogue going forward to jointly address any key issues and enhance understanding.
Gitxaala Nation said that information provided by them regarding their rights and interests, and the impacts on these, was not well represented in the baseline information presented by Northern Gateway. It also said that this was not reflected in Northern Gateway's Environmental and Socio-Economic Assessment. In reply, Northern Gateway said its approach to assessing potential effects of the project on the traditional use of lands and resources by Aboriginal people was done through assessing the project effects on various components of the biophysical environment.
Northern Gateway said that, since no significant adverse environmental effects were predicted during construction and routine operations for terrestrial or marine biota, or the ecosystems on which Aboriginal groups depend, the project is not expected to result in any significant adverse effects on the abundance, distribution, or diversity of resources harvested by Aboriginal people, or on the land that supports these resources. Gitxaala Nation was critical of this approach, and said that Northern Gateway's method of relying on biophysical indicators to determine whether there would be effects on resource availability is an indirect and inappropriate approach to determining potential impacts to rights and interests.
A number of Aboriginal intervenors noted that what Northern Gateway deems a non-significant impact, and what Aboriginal groups understand significance to mean, are very different. Haisla Nation said that Northern Gateway failed to consider the Aboriginal perspective on significance of effects. Other groups held similar positions, saying that Northern Gateway's determination that the project would not result in significant adverse effects on the environment does not consider the values that Aboriginal groups place on their use of resources, including scarce, rare, or unique values. Additional information regarding significance determinations can be found in Chapter 8.
The Gitga'at First Nation said that Northern Gateway's characterization of economic benefits failed to include important impacts on many natural resources and ecosystem services that are not traded in economic markets, but which are of critical importance to the Gitga'at economy, culture, and society. The Gitga'at First Nation also said that Northern Gateway had not included the impacts of increased perceptions of risk on economic values and community wellbeing. Driftpile First Nation said that Northern Gateway chose to focus on economic or financial compensation, rather than providing it with sufficient information on the project's impacts on its interests, particularly the impact on its Aboriginal and treaty rights. Various groups said that their rights go beyond just the harvesting right that Northern Gateway has assumed exists, stating that their rights encompass Aboriginal title and self-government rights, including the right to decide how their lands and resources will be utilized.
Within both written and oral evidence, Aboriginal groups provided information on how, where, and when they exercise their potential and established Aboriginal and treaty rights. Many groups also said that they felt that the project, both during construction and throughout operations, would adversely impact their uses and activities within their traditional territories. Aboriginal groups that were signatories to Treaty No. 6 and Treaty No. 8 provided evidence regarding their rights and their activities including hunting, trapping, fishing, and gathering throughout their traditional territories.
Métis groups said that they are a distinct Aboriginal people. The Métis Nation of Alberta provided evidence relating to Alberta's Métis Settlements legislation, information relating to their traditional territories, as well as how members continue to use the land along the proposed route. The Métis Nation of British Columbia presented oral evidence relating to its membership, as well as place names along the proposed route, to indicate their historic and current use of and affinity with lands in the project area. It also provided oral evidence relating to traditional and current land use.
The Heiltsuk Tribal Council placed evidence on the record about its Aboriginal right to trade herring spawn on kelp on a commercial basis, as determined by the Supreme Court of Canada in R. v. Gladstone ( 2 SCR 723). The Heiltsuk said that this harvesting is indicative of the stewardship by the Nation towards herring and other seafood resources.
The Panel travelled to numerous communities along the project route and to coastal areas to hear and seek to understand the views and concerns of Aboriginal groups. The Panel considered it a privilege to be able to visit with individual communities and hear the participants' perspectives, which were communicated with wisdom, passion, and great personal conviction. Through the Panel's participation in feasts and ceremonies, which included the sharing of stories, music, and dance, the Panel gained increased cultural knowledge and understanding. In order to optimize opportunities for individuals and groups to present their evidence and opinions to the Panel, the Panel incorporated remote participation through video and telephone links into the hearing room during all aspects of the oral hearings. It is the Panel's view that this approach was effective. Many participants, including expert witnesses, commented that they found the remote participation options useful and effective. This approach provided all participants with opportunities to decide to participate and not be limited from giving evidence and opinions due to travel, finances, work, and life commitments.
The Panel carefully considered the evidence provided and how it pertained to Aboriginal use of lands, waters, and resources within the project area, Aboriginal interests, as well as the potential impacts of the project on these uses and interests.
In keeping with its mandate, the Panel has not made any determinations regarding Aboriginal rights, including Métis rights, treaty rights, or the strength of an Aboriginal group's claim respecting Aboriginal rights. The Panel acknowledges that the project area includes territories of Aboriginal groups who are signatories to Treaty No. 6 and Treaty No. 8 and that there are various rights afforded those groups by those Treaties. The Panel also acknowledges the court-established Heiltsuk Nation's Aboriginal right to trade herring spawn on kelp on a commercial basis.
Through the review process, Aboriginal groups had the opportunity to make their views and concerns on the project known, including what effects it might have on their potential or established rights and interests. Aboriginal groups explained to the Panel that everything is connected. They said that not only do they harvest resources from the lands and waters, but these resources are essential and connected to their spiritual wellbeing and, for some groups, have an important role in their governance practices. They said that Northern Gateway's assessment did not include potential impacts on culture and spiritual values connected with land and marine resource use.
Aboriginal groups spoke of their desire to preserve their culture and indicated that the project and any potential spills resulting from a malfunction or accident would adversely impact their culture. Some described how their cultural practices and values are integral to their traditional forms of governance and their concern that the project may affect their ability to make decisions related to the use of lands, waters, and resources.
The Panel also heard of business initiatives being developed by individual Aboriginal groups to develop community-specific sustainable economies through ventures such as ecotourism and seafood processing plants. Aboriginal groups described the responsibility they feel to protect their land and marine resources for future generations.
The Panel acknowledges the strongly-held views of Aboriginal groups about the cultural, biophysical, and spiritual connectedness between the lands, the waters, the people, and their societies. Aboriginal groups told the Panel that a negative impact on one of these may result in a negative impact on any or all of the others. Aboriginal groups questioned the way in which Northern Gateway assessed the potential impacts of the project on their rights and interests. Groups were also critical of how Northern Gateway considered and used information that was provided to the company after it had submitted its application. In particular, some groups felt that the company did not account for, or incorporate, in its Environmental and Socio-Economic Assessment, information regarding their uses and interests that was provided through community-directed Aboriginal Traditional Knowledge studies and in oral evidence.
The Panel considered the evidence provided by Aboriginal groups, Northern Gateway, and other participants as to the nature and extent of the activities, uses, and practices that are carried out by Aboriginal groups within the project area, and the potential impacts of the project on those activities, uses, and practices. The Panel also considered all the measures committed to by Northern Gateway to avoid or mitigate such impacts.
The Panel acknowledges the importance that Aboriginal groups place on being able to continue their traditional activities, uses, and practices within the entire area of their traditional territories, including access to resources and cultural sites. It has assessed the potential project impacts and mitigation with that perspective in mind.
The Panel acknowledges that increased presence of industrial activity causes stress to some people. Much evidence was provided about increased stress, particularly to coastal Aboriginal groups, with respect to the marine aspect of this project. The project would result in increased industry, particularly off the west coast of Canada. The Panel notes that there is already large vessel traffic in this area, including those associated with commercial fisheries and industrial activities, such as the aluminum smelter in Kitimat and the cruise ship business. The Panel was presented with written evidence and heard during oral evidence that Aboriginal groups continue to use lands, waters, and resources in this area for traditional purposes. The Panel finds that this evidence demonstrates that there is a current compatibility for multiple uses in this area.
In its evidence, Northern Gateway outlined its approach for assessing the potential impacts of the project on the rights and interests of Aboriginal groups. Its approach relied on an assessment of the effects of the project on biophysical and human environments. This incorporated information provided by Aboriginal groups through consultation, Aboriginal Traditional Knowledge studies, and their participation in biophysical field studies. Northern Gateway concluded that there would be no significant adverse environmental effects on those resources or the ecosystems that support them. Northern Gateway, therefore concluded that the project would not have a significant adverse effect on those who depend on the land and water for sustenance, including Aboriginal groups who may exercise their potential and established Aboriginal and treaty rights in the use of land or water for traditional purposes.
While some Aboriginal groups did not agree with the approach taken by Northern Gateway, the Panel finds that the general approach Northern Gateway used to assess the potential impacts of the project on Aboriginal interests to be acceptable. The Panel finds that, if Northern Gateway's assessment of the project's potential effects accurately concludes that, during construction and routine operations, there would be no significant adverse impacts to the biophysical resources used by Aboriginal groups or to the ecosystems that support these, the project would not result in significant adverse effects on the ability of Aboriginal people to continue to use lands, waters, or resources for traditional purposes.
The Panel heard from Aboriginal groups that any potential biophysical impacts arising from the project could have impacts on other aspects of Aboriginal society such as governance systems, community structure, and traditional teachings and learning. The Panel accepts Northern Gateway's assessment that, during construction and routine operations, there would not be significant adverse effects to the biophysical resources used by Aboriginal groups or to the ecosystems that support these. Based on this finding, the Panel finds that other associated or consequential impacts, such as those mentioned above, cannot be attributed to this project. The Panel also finds, based on this finding, that there would not be significant adverse effects on the interests of Aboriginal groups that use lands, waters, and resources in the project area.
The Panel notes that some Aboriginal groups were critical of Northern Gateway for not incorporating into its project assessment and design Aboriginal Traditional Knowledge that was received by the company after it submitted its application, or that was placed on the record during the review process. As a result of the commitment and involvement of many Aboriginal groups in the review process, in addition to the information provided by the company, the record of this proceeding contains a wealth of written and oral evidence about the uses and interests of Aboriginal people within the project area that has never before been collected in one place.
A review process like this one is iterative and results in further information being available for final project planning and design, should the project proceed. The Panel finds that Northern Gateway has considered and, to the extent possible, incorporated the information provided by Aboriginal groups in its studies, design, and mitigation measures. The Panel requires Northern Gateway to continue its consideration and incorporation of additional information it receives from Aboriginal groups as it proceeds to final design.
The Panel is also of the view that, in order to meet the principles of thorough and effective consultation, an applicant must adequately demonstrate how it considered the input and information it received from potentially-affected groups, and that this is appropriately communicated back to those groups and individuals that provided input. The Panel finds that Northern Gateway did not in all cases communicate in this manner. Some Aboriginal groups stated that they provided Northern Gateway with information and shared their knowledge about their uses and interests in the project area. In the Panel's view, the company could have done more to clearly communicate to Aboriginal groups how it considered, and would continue to consider, information provided by them.
Project construction and operation would require Northern Gateway to implement all measures that it has committed to and to comply with the Panel's conditions, including those relating to consultation. The Panel is of the view that these consultation activities, when undertaken with goodwill and commitment by all participating parties, would result in effective dialogue. This would lead to improved understanding and adaptive mitigation through initiatives such as the Fisheries Liaison Committee, the initiation of scientific research to improve the knowledge of the existing marine environment, and to identifying any site-specific traditional use interests during detailed routing. The Panel finds that inclusion of Aboriginal groups in these and other processes would contribute to shared understanding of the project and its impacts, and the sharing of opportunities and successes, for the applicant and affected communities and people.
The Panel does not share the view of some Aboriginal groups that the impacts associated with this project during construction and routine operations would eliminate the opportunity for Aboriginal groups to maintain their cultural and spiritual practices and the pursuit of their traditional uses and interests associated with the lands, waters, or resources.
The Panel finds that there would be adverse impacts associated with this project, and that these would be experienced by some Aboriginal groups. Based on the evidence, the Panel finds that, during construction and routine operations, these impacts would be temporary. Recognizing the interconnectedness that many parties pointed out, including Northern Gateway, no industrial development can occur without impacts.
The Panel is of the view that there are opportunities for potentially-affected Aboriginal groups to maintain and strengthen some aspects noted as being important to Aboriginal communities through project-related programs, such as Northern Gateway's commitment to ongoing wildlife studies, monitoring programs, and support for new education and language training opportunities. Chapter 2 provides the Panel's analysis of all of the benefits and burdens associated with this project.
Viewing all of these factors together, the Panel finds that, during construction and routine operations, there would not be a significant adverse effect on the ability of Aboriginal groups to continue to use lands, waters, or resources for traditional purposes within the project area. Northern Gateway's routine activities would not significantly adversely affect the ability of Aboriginal groups to maintain, pursue, and strengthen their traditional and cultural activities, and would not significantly adversely affect the interests of Aboriginal groups that use lands, waters, or resources in the project area.
The Panel finds that, in the unlikely event of a large oil spill, there would be significant adverse effects on lands, waters, or resources used by Aboriginal groups, and that the adverse effects would not be permanent and widespread.
The Panel recognizes that reduced or interrupted access to lands, waters, or resources used by Aboriginal groups, including for country foods, may result in disruptions in the ability of Aboriginal groups to practice their traditional activities. The Panel recognizes that such an event would place burdens and challenges on affected Aboriginal groups. The Panel finds that such interruptions would be temporary. The Panel recognizes that, during recovery from a spill, users of lands, waters, or resources may experience disruptions and possible changes in access or use. The Panel discusses the likelihood of malfunctions or accidents, and the potential associated environmental effects, in Chapters 5 and 7.