ARCHIVED - Chapter 9 Consultation
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The National Energy Board expects proponents to consider consultation for all projects. Depending on the project scope, this could mean carrying out a very extensive consultation program or a very simple program such as notifying a single landowner. Proponents are responsible for justifying the extent of consultation carried out for each project. For complex projects that require an extensive consultation program, such as the Mackenzie Gas Project, the following information is expected to be provided within an application to the National Energy Board:
- an outline of the principles and goals for consultation by which the project proponent will ensure that it adequately consults with, and respects the rights of, those potentially affected;
- a description of the project’s consultation program and an indication why its design is appropriate for the nature of the project and the type of application; and
- a description of the results of the consultation conducted to date for the project, with sufficient detail to demonstrate that those potentially affected by the project have been adequately consulted and that any concerns raised have been considered and addressed as appropriate.
- people living near the proposed pipeline;
- local land users;
- Aboriginal people;
- local, territorial and federal government authorities; and
- others who might have an interest in the project such as community associations and environmental groups.
Proponents are required in their applications to describe the results of the consultation carried out, including how the consultation program was undertaken, a summary of the comments and concerns raised, how comments and concerns have been addressed by the proponents, and how outstanding concerns will be addressed. Proponents should also be able to demonstrate how public input influenced the design, construction, or operation of the project. When an application is filed with the National Energy Board, it is reviewed to assess whether or not the company has taken into consideration the comments and concerns raised about the project.
The National Energy Board provides members of the public with information on how they may participate in the National Energy Board process through various publications and community information sessions to ensure that all interested individuals and groups have an opportunity to make their views on a project known to the National Energy Board.
This process is designed to provide the National Energy Board with a full understanding of the concerns that governments, Aboriginal people and the public in general may have with the project so that the National Energy Board may appropriately consider and address those concerns in its decision making.
In addition to consultations undertaken by the Proponents and the opportunities for participation by parties in the Joint Review Panel and National Energy Board hearing processes, the federal government established the Crown Consultation Unit to coordinate its consultation with Aboriginal people about the project. The Crown Consultation Unit included representatives from Environment Canada, Indian and Northern Affairs Canada, Natural Resources Canada, Department of Fisheries and Oceans, and Transport Canada. In addition, the Government of the Northwest Territories consulted extensively with the territories' residents and Aboriginal people about the project. Consultation with Aboriginal people by the Crown for the Mackenzie Gas Project will continue as the project progresses.
9.2-The Proponents' consultation program
The Proponents define public consultation as the process of involving all affected parties in the design, planning and operation of a project. This process requires the Proponents to give the parties to be consulted notice of the matter in sufficient form and detail and with a reasonable amount of time to allow them to prepare their views on the matter.
The Proponents stated their goal for the Mackenzie Gas Project is to conduct consultation that is meaningful and effective. Consultation activities are to be well documented, inclusive and dynamic, and provide transparent engagement with communities affected by the project. The Proponents also noted that consultation would continue throughout the lifespan of the project.
The Proponents indicated that their public consultation efforts for the project have been primarily focused on Aboriginals and other Northerners. Most of the interactions with the public, governments, regulatory authorities, local businesses, non-government organizations and people directly affected by the project development have involved Aboriginal people of Inuit, Dene and Métis heritage.
The public consultation program for the Mackenzie Gas Project was conducted by representatives of the:
- Mackenzie Gathering System and Mackenzie Valley Pipeline operator;
- Environmental Impact Statement consultants;
- development field operators; and
- engineering consultants.
9.2.2-Consultation for the Mackenzie Gathering System and Mackenzie Valley Pipeline
The Proponents undertook consultations related to the Mackenzie Gathering System and Mackenzie Valley Pipeline. Some initiatives were undertaken jointly with the development field operators. In addition, each development field operator conducted separate consultations for their respective field developments. (For more information see Section 9.2.3.)
The Proponents stated their consultation and community affairs group provides a multi-layered support system which is structured to provide consistent activities and information exchange in all regions and communities throughout the project area. This includes resident community representatives in the pipeline corridor, regional representatives who are beneficiaries of and live within the region, and Calgary-based representatives who routinely travel within the region.
The Proponents stated that public consultation was an integral part of the project. They have been consulting with Aboriginal and non-Aboriginal people in communities that might be affected by the project since January 2002. They have also consulted with governments, regulatory authorities, potential shippers and suppliers, labour groups, non-government organizations and industry representatives, and members of the public
On the record
The Proponents used various methods to address the broad range of interests, levels of understanding and needs of potentially affected parties, including establishing three regional offices with open door policies. Consultation methods and activities were also selected to address the needs of stakeholders in more remote locations. To provide opportunities for community input, regional liaison staff, community representatives, Proponents' and contractors' consultation staff have:
- conducted one-on-one visits;
- contacted community leaders, individually and collectively;
- provided written materials such as letters, brochures, project website materials, posters and advertisements and third-party items such as the Cooperation Plan;
- conducted interviews with local media, including stations that broadcast local language programs;
- created audio-visual materials;
- held workshops, public meetings and open houses;
- made project presentations at many community events and conferences;
- sponsored project-focused events, such as an organized tour of a pipeline construction site, for community residents;
- visited schools, made presentations and attended career fairs; and
- met with various representative groups within the communities and regions.
The Proponents have conducted over 1500 meetings with northern residents and community organizations, the results of which have been recorded and documented. There have been more than 350,000 visits to the project website. The information and feedback gathered from affected communities and organizations during the consultation program identified a number of concerns, some expressed by more than one group. Other concerns were more localized and affected only one group or area. In many cases, the concerns raised were dealt with by the Proponents. In a few cases, additional study and consultation was required to develop satisfactory solutions.
throughout the Northwest Territories and Canada. Consultation was used to explain the purpose, needs and limitations of the project. At the same time, the Proponents were seeking to understand local concerns and to use this information in project planning. The primary goals of the ongoing consultation program were stated to be:
- to increase public awareness of the project by providing timely information and soliciting comments from affected members of the public about proposed development and activities that might affect their communities, including the potential environmental and socio-economic effects;
- to respond to public input and concerns, and take them into account during project planning, design and implementation;
- to encourage the participation of Aboriginal and other northern residents, as well as other Canadians, in the employment and business opportunities created by the project; and
- to identify, and reduce or mitigate, any negative effects the project might have on the biophysical or socio-economic environment.
Formal mechanisms were developed to share the information obtained during the consultation program with the different consultation groups working on the Mackenzie Gas Project. One mechanism is an issues database, which the Proponents use to capture meeting notes and any follow-up items that arise. Everyone working on the Mackenzie Gas Project can view this issues database. Another mechanism is a system that the Proponents use to track commitments, to ensure that the staff
members involved in subsequent phases of the project have an accurate record of commitments that are made.
In addition the Proponents' engineering contractors worked with the Proponents' consultation staff to communicate information on the design, site and route selection, and initial site investigation in support of the project. Community consultation activities have been coordinated through local project offices in Inuvik, Norman Wells, Fort Simpson and Hay River. The project's public consultation program will continue throughout the regulatory process, and throughout the construction and operations phases of the project.
Environmental Impact Statement consultation program
The consultants that prepared the Environmental Impact Statement developed and implemented a complementary, but distinct, program of biophysical and socio-economic public participation. This program was conducted to obtain input for the Environmental Impact Statement prepared for the three development field plans—Niglintgak, Taglu, and Parsons Lake,the Mackenzie Gathering System and the Mackenzie Valley Pipeline.
A separate team was responsible for designing and completing the public participation program for the Proponents' Environmental Impact Statement. This team worked closely with the Proponents' consultation and community affairs group in developing and implementing stakeholder participation opportunities. Staff from the Proponents' consultation and
community affairs group was directly involved in many of the meetings that were held specifically to discuss the Environmental Impact Statement. The meeting notes and any follow-up items from the meetings with the Environmental Impact Statement public participation team were recorded in the Proponents' issue database.
Two main rounds of activity occurred. The first round consisted of identifying and scoping issues, with communications centering on introducing the project and identifying community concerns. Consultation efforts during the second round focused on assessing mitigation and management measures to mitigate the effects of the project. During both rounds, meetings were held in potentially affected communities to seek input on identifying possible impacts. These meetings were followed by workshops in regional centres. All of these meetings and workshops helped the Proponents identify potential impacts associated with the Mackenzie Gas Project for which mitigation measures had to be considered. A number of changes were made to the project design as a result of this input.
The Proponents submitted that, while all suggested mitigation measures were considered, not all were adopted. The Proponents must also consider other factors including technical feasibility, safety and cost in determining which mitigation measures to adopt. In this way, the Proponents have stated that mitigation measures are considered within a sustainability framework.
9.2.3-Consultation for the development fields
Each of the development field operators conducted its own public consultation program. Each operator was responsible for consultation on its own particular field and staffed its project team to facilitate consultation objectives, methods, activities and materials. Where possible, activities were combined and coordinated to include the Mackenzie Gathering System. In order to share information from the consultation programs that might affect their venture partners, the Proponents had both:
- a formal process (i.e., meetings of development field partners every two weeks to discuss matters related to consultation and regulatory affairs to ensure a common understanding of the issues they are each facing); and
- an informal process (i.e., development field partners working with the Proponents’ regional staff to ensure they are informed about each other’s activities and any matters that have come up in their meetings).
Shell - Niglintgak
Shell stated that working with stakeholders is a key principle in its commitment to sustainable development, and that it developed a coordinated consultation plan for all of its activities in the Mackenzie Delta. For the Niglintgak field, Shell submitted that emphasis had been placed on consultation, and concerns raised in these discussions were considered while preparing the Niglintgak Development Plan Application and subsequent filings. Stakeholder input helped Shell focus on specific
items to ensure full understanding of the potential impacts before making a decision. Shell met with Aboriginal and non-Aboriginal Northerners; municipal, territorial and federal representatives; communities; regulators and agencies; and other oil and gas companies. During consultation, specific concerns regarding Niglintgak were raised, including:
- the size and nature of the development’s land footprint;
- the biophysical and socio-economic effects of the proposed gas conditioning facility concept;
- the drilling waste disposal method; and
- the use of drilling sumps.
Shell submitted that information arising from these discussions was used to develop and refine its plans. Design changes for the Niglintgak field that resulted from community consultations included:
- reducing the development footprint by locating drilling sites at pre-disturbed locations and using above ground flow lines;
- reducing the draught of the proposed barge-mounted gas conditioning facility, moving the barge set down location outside the Little Kumak Channel, and committing to schedule dredging activities to avoid impacts to the beluga whale harvest;
- eliminating the remote sump and committing to transport drilling waste to a waste management facility outside of the Northwest Territories; and
- scheduling most of Shell’s activities during winter months when wildlife is less abundant in the area.
Shell committed to ongoing consultation with stakeholders and interested parties.
Imperial - Taglu
Imperial's consultation activities for the Taglu field development were, for the most part, integrated into the Proponents' consultation program. Imperial's participation in Mackenzie Gas Project consultation activities included:
- developing printed material and brochures;
- exchanging information at workshops;
- public meetings and open houses;
- seeking input from community representatives and regulators; and
- communicating with community leaders.
Imperial submitted that many of the concerns raised at Mackenzie Gas Project public meetings, particularly in the Beaufort Delta region, were common to the Mackenzie Gathering System, the Mackenzie Valley Pipeline, and the Taglu field. Specific concerns raised by stakeholders in the Beaufort Delta region included land disturbance and footprint in Kendall Island Bird Sanctuary, and the disposal of drilling waste. In response to these concerns, Imperial proposed a number of mitigation measures, including:
- use of a single well pad;
- staging materials and supplies offsite at an existing disturbed area at Tununuk Point; and
- using a disposal well for drilling waste.
Imperial stated that consultation activities for the Taglu field will continue throughout the construction, operation, abandonment, and reclamation phases.
ConocoPhillips - Parsons Lake
ConocoPhillips stated that responsible business involves listening and responding to the needs of its stakeholders. ConocoPhillips said it consulted throughout the evolution of the Development Plan for Parsons Lake and concerns raised by stakeholders were considered while preparing the Development Plan Application. ConocoPhillips met with Aboriginal and non-Aboriginal Northerners; municipal, territorial and federal representatives; communities; regulators and agencies; and other oil and gas companies. ConocoPhillips further submitted that information from these discussions has been used to develop and refine the plans for the Parsons Lake field development. Design changes to the Parsons Lake field that resulted from community consultations included:
- in response to concerns that above ground pipelines would negatively impact caribou migration patterns, changing the design of the lateral line from the north pad to be a buried line, and designing the flow lines from the south pad to be 2.2 metres above ground to allow for the passage of caribou and harvesters below;
- reducing the size of the north and south pads;
- strapping together two required flare stacks to minimize overall land required;
- utilizing two levels of lighting so that a lower intensity lighting level is normally used, and a higher intensity will only be used during maintenance activities; and
- optimizing distance between wellbores to prevent coalescence of well permafrost thaw bulbs.
ConocoPhillips committed to conducting consultation in a manner that is consistent with its Stakeholders Relations Policy, by providing stakeholders with project information, and listening to and considering their input, throughout the life of the development.
9.2.4-Consultation with government
Representatives from territorial and federal agencies were invited by the Proponents to participate in Mackenzie Gas Project workshops specific to the Environmental Impact Statement and open house activities related to the project. In addition, the Proponents held regular meetings with territorial and federal government departments and agencies to provide activity updates, discuss emerging issues, and develop plans to manage the issues and coordinate schedules for activities of interest to all parties.
The Proponents also advised in evidence that they kept the relevant government agencies apprised of any concerns raised that were beyond the ability of the Proponents to address.
The Proponents also noted that the scope of Crown involvement included:
- working with the Dehcho First Nations to establish a pipeline study corridor, as specified in the Interim Measures Land Withdrawal Agreement between the Dehcho First Nations and the Government of Canada;
- participating as observers in regional Mackenzie Gas Project Environmental Impact Statement workshops and in non-governmental organization workshops;
- corresponding with Aboriginal Leaders in the Inuvialuit Settlement Region, Gwich’in Settlement Area, Sahtu Settlement Area and Dehcho regions in the Northwest Territories and with the Dene Tha’ in Northeastern Alberta; and
- announcing a Crown Consultation Unit to facilitate and report to the National Energy Board on Crown consultation with Aboriginal Groups.
9.3-Participation by parties in the Joint Review Panel hearing process
As discussed in Chapters 2 and 3, parties had the opportunity to raise socio-economic and environmental concerns in the Joint Review Panel hearings.
The overarching purpose of the Joint Review Panel, as described in the Agreement for an Environmental Impact Review of the Mackenzie Gas Project (Agreement), was to conduct an Environmental Impact Review of the Mackenzie Gas Project, having regard to:
As set out in the Agreement, the Joint Review Panel was required to conduct its review in a manner that would promote and facilitate public participation, and ensure that the concerns of Aboriginal people and the general public were taken into account in that process. To fulfill this mandate, the Joint Review Panel held public hearings in the Northwest Territories and Alberta. Persons or groups were allowed to participate fully in the Joint Review Panel's review process as intervenors, and the Joint Review Panel granted intervenor status to 103 individuals, groups or organizations. Persons or groups who were not intervenors were given other opportunities to participate in the public hearings, and any individual, group or organization could file written comments at any time throughout the review.
The Joint Review Panel held hearing sessions between 14 February 2006 and 29 November 2007. The Joint Review Panel held a total of 115 days of hearings in 26 centres and northern communities. The Joint Review Panel heard directly from 558 presenters, either as individuals or as representatives of groups or organizations. Matters presented to the Joint Review Panel related primarily to the potential environmental, social and cultural impacts of the project, but also included aspects related to project design and construction, geohazards, accidents, malfunctions and emergency response. These matters were addressed in
the Joint Review Panel Report filed with us for consideration in our decision.
9.4-Participation by parties in our hearing process
In order to ensure that its record is as complete as possible about the potential impacts of a project, and to ensure that these factors can be considered in its final decision, the National Energy Board relies on evidence provided in accordance with the requirements of its Filing Manual, and on its hearing process. The National Energy Board encourages those with an interest in a project to participate in the hearing process in order to make the National Energy Board aware of their views and concerns. To facilitate participation, we held community information sessions and pre-hearing conferences and had staff available in the hearing room to assist parties.
Our hearings for the Mackenzie Gas Project focused on safety, engineering and economic issues, but other matters were also heard including social, cultural and environmental issues and concerns. We heard directly from people potentially affected by the project in the Mackenzie Delta and along the Mackenzie River, in larger communities such as Yellowknife, and in High Level, Alberta. Our hearing process provided members of the public, governments, Aboriginal people and other interested parties
with a number of opportunities to participate in hearing sessions, and to provide input into the review of the project. Opportunities that were available included filing a letter of comment, making an oral statement at a hearing session, providing written evidence, offering oral testimony by elders and members of Aboriginal groups, cross-examination of the Proponents and other parties, and presenting final argument.
A total of 129 individuals, groups and organizations applied to be intervenors in our hearings. We also received eight letters of comment and 21 requests to make oral statements. All of our hearings were broadcast live by audio webcasting, and were also available to participants via a toll-free telephone service. Hearings were interpreted live, as appropriate, into English, French, Inuvialuktun, Gwich'in, and the North Slavey, South Slavey and Dene Tha' languages.
We held public sessions of our hearings in 15 communities between 25 January and 14 December 2006. Subsequent sessions were also held in 2007 and 2010, including sessions on the Proponents' 2007 updated evidence and
evidence relating to the activities of the Crown Consultation Unit. We also heard final argument directly from parties, with some parties providing written final argument. A range of views and concerns were expressed by individuals, organizations, governments and Aboriginal groups through our hearing.
Several parties raised a number of consultation-related issues and requests with us. Alternatives North and Indian and Northern Affairs Canada recommended that we define ‘consultation' for the purposes of our conditions, and that we adopt the definition of consultation described in Section 3 of the Mackenzie Valley Resource Management Act. Environment Canada requested that for conditions requiring the Proponents to consult with Environment Canada, that evidence of Environment Canada's level of satisfaction regarding consultation should be provided. The Government of Yukon requested that Condition 27 be amended so that the plans for a formal issues resolution program would be prepared in consultation with the Government of Yukon.
9.5-Consideration of Aboriginal concerns
Given the importance of Aboriginal concerns and considerations, this section discusses more fully the concerns and issues raised by Aboriginal groups.
9.5.1-Accommodation by the Proponents
The List of Issues contained in the Hearing Order for our GH-1-2004 proceeding identified the adequacy of Aboriginal consultation as an issue to be considered by us. Consultation efforts by the Proponents for the Mackenzie Gas Project primarily involved Aboriginal people, as members of communities, governments, Aboriginal authorities, regulatory bodies, local businesses and as land claim beneficiaries.
The Proponents submitted detailed tables and periodic updates summarizing all of their project-related consultation efforts, including the concerns that were raised during these consultations in the Inuvialuit, Gwich'in, Sahtu and Dehcho regions and northern Alberta. Their record of consultation highlighted the measures that were taken, or will be taken, by the Proponents to address the concerns raised by Aboriginal groups as well as other affected parties. The consultation record also indicated how these concerns and the Proponents' responses have influenced the design of the Mackenzie Gas Project, and whether any concerns remain outstanding. Examples of the changes that have been made to the design of the Mackenzie Gas Project by the Proponents in response to concerns and community input are listed in Table 9-1.
Table 9-1-Changes to project design
Changes in the Inuvialuit Settlement Region
Changes in the Gwich’in Settlement Area
Changes in the Sahtu Settlement Area
Changes in the Dehcho Region
Some of the concerns raised by Aboriginal people were related specifically to the proposed general routing and the locations of proposed facilities. Details of these concerns, and the measures proposed by the Proponents to address them, are found in Chapter 5.
In addition to the Proponents' specific measures to address concerns raised by Aboriginal groups, the Proponents noted that they have concluded benefits and access agreements for the Inuvialuit Settlement Region and for the Gwich'in and Sahtu Settlement Areas. The Proponents noted that such agreements have not been concluded for the Dehcho region, and stated they are committed to concluding benefits and access agreements for the Dehcho.
9.5.2-Concerns raised in our hearing
A number of Aboriginal groups and organizations presented their views and concerns directly to us during our hearing.
Gwich'in Tribal Council
The Gwich'in Tribal Council stated that the Mackenzie Gas Project can contribute to a sustainable economy in the North, and provide a greater and fulfilling role for the Aboriginal peoples of the Dehcho, Sahtu and Mackenzie Delta regions. Gwich'in Tribal Council President Richard Nerysoo stated that:
The Gwich'in Tribal Council noted the Mackenzie Gas Project will provide a range of benefits to the Gwich'in, Northerners and other Canadians, including economic benefits, job creation, revenues and taxes to all levels of government, and will help reinforce Canada's sovereignty in the North.
The Gwich'in Tribal Council encouraged us to grant a Certificate for the Mackenzie Gas Project, but requested that we review the Gwich'in Tribal Council's comments on the Joint Review Panel recommendations, and the concerns raised with the Joint Review Panel relating to environmental protection, cultural preservation, and economic development. Finally, the Gwich'in Tribal Council recommended that the Proponents be required to commence project construction within three years of receiving a Certificate, and that the Mackenzie Gas Project be available on appropriate commercial terms to all potential shippers.
Inuvialuit Regional Corporation
Ms. Nellie Cournoyea, Chair and Chief Executive Officer of the Inuvialuit Regional Corporation stated that throughout the public hearings of the National Energy Board and the Joint Review Panel:
The Inuvialuit Regional Corporation noted that economic opportunity is limited in Beaufort Delta communities, and the Inuvialuit want to be self-reliant and enjoy the benefits of a thriving and sustainable economic base. The Inuvialuit Regional Corporation stated the Mackenzie Gas Project and ongoing exploration and development would provide such economic opportunity to Beaufort Delta communities and other regions. Ms. Cournoyea also noted:
in the absence of a land claim settlement for the Dehcho region. The Inuvialuit Regional Corporation encouraged us to include in our approval terms that would direct the federal government to support ongoing planning processes in the Beaufort region through the release of the Mackenzie Gas Project Impacts Fund.
Mackenzie Valley Aboriginal Pipeline Limited Partnership
The Mackenzie Valley Aboriginal Pipeline Limited Partnership (otherwise known as the Aboriginal Pipeline Group), representing the one-third Aboriginal ownership interest in the project, also expressed its support for the Mackenzie Gas Project. Mr. Fred Carmichael, Chair of the Mackenzie Valley Aboriginal Pipeline Limited Partnership noted the Mackenzie Gas Project
is the first step to regaining economic self-sufficiency for the regions. He stated that:
North Slave Métis Alliance
The North Slave Métis Alliance stated they were not identified as an Aboriginal group for consultation in the Proponents' Environmental Impact Statement, that they should have been included in the Proponents' list of non-corridor communities, and that consultation by the Proponents was not adequate.
The Dehcho Elders and Harvesters Councils, Dehcho First Nations, the Sambaa K'e Dene Band and the Liidlii Kue First Nation raised a number of unresolved concerns about the project in their submissions to us. Some concerns were raised by more than one group from the Dehcho region, while other concerns were unique to the interests of specific communities. Overall, the concerns encompassed several broad issues related to the potential impacts and benefits arising from the approval, construction and operation of the Mackenzie Gas Project.
Those issues raised by Dehcho communities relating to socio-economic and environmental concerns are addressed in Chapter 3.
Agreements and settlements
Concerns were raised by the Dehcho Elders and Harvesters Councils and the Dehcho First Nations regarding the status of key settlements and agreements for the Dehcho Region. On behalf of the Dehcho Elders and Harvesters Councils, Mr. Herb Norwegian noted that:
Mr. Norwegian further stated that:
The Dehcho Elders and Harvesters Councils also expressed their disappointment and frustration with the Government of Canada and the Government of the Northwest Territories for delay in adopting the Dehcho Land Use Plan, which was ratified by the Dehcho First Nations in 2006. The Dehcho Elders and Harvesters Councils stated that the land use plan is an expression of the values and aspirations
of the Dehcho Dene, and they have placed a high priority on the formal adoption and implementation of the land use plan.
The Dehcho Elders and Harvesters Councils and the Dehcho First Nations stated that they cannot support the approval of the Mackenzie Gas Project without a land use plan in place for the Dehcho Region, and recommended that access for construction in the Dehcho territory be delayed until the Dehcho Process has been concluded and the Dehcho Land Use Plan has been implemented. This view was supported by the Sambaa K'e Dene Band. The Dehcho Elders and Harvesters Councils further recommended that the project not proceed to construction until the Proponents have concluded an Access Agreement and a Benefits Agreement for the Dehcho communities. The Dehcho First Nations noted that the Proponents' updated project schedule indicated that a decision to construct the project would be made in approximately 2013. Dehcho First Nations Grand Chief Samuel Gargan noted that, in the Dehcho First Nations' view:
Consultation by the Proponents
The Sambaa K'e Dene Band and the Dehcho First Nations raised concerns regarding the adequacy of the Proponents' consultation. The
Dehcho First Nations stated that the Proponents' efforts were inadequate, and that many regional and community concerns about the project remain unaddressed. Dehcho First Nations Grand Chief Samuel Gargan expressed concern that the Proponents were “frequently referring us to subsequent regulatory processes rather than directly dealing with us to resolve these issues” such as consultation regarding future block valve locations.
The Sambaa K'e Dene Band stated that the Proponents did not respect the Sambaa K'e Dene Band's stated preference to independently negotiate an area-specific impact benefit agreement, and expressed concern that the Proponents avoided their consultation obligations within the National Energy Board's regulatory process.
In response, the Proponents noted that, as a consequence of consultation, many changes were made to the design of the Mackenzie Gas Project in the Dehcho region. The Proponents also noted consultation did not lead to agreement in every case, and that some remaining issues can only be addressed at the permitting stage, following the collection of additional information. Finally, the Proponents affirmed that consultation for the project will continue, and the Proponents will continue to strive to address outstanding concerns.
Adequacy of Crown consultation
Concerns were raised by the Dehcho First Nations, the Sambaa K'e Dene Band and the
North Slave Métis Alliance about the adequacy of Crown consultation for the project. The Dehcho First Nations stated that Canada's consultation efforts were inadequate, and that Canada's evidence submitted to us failed to acknowledge the submissions and recommendations made to the Joint Review Panel by the Dehcho First Nations.
The Sambaa K'e Dene Band stated Canada did not fulfill its legal obligation to consult with the intent of finding accommodation, including compensation for the infringement of Section 35 rights and interests on Crown lands. The Sambaa K'e Dene Band recommended that we not issue a Certificate for the project until Canada has concluded its consult to modify process in relation to the Joint Review Panel recommendations, particularly with respect to Section 35 issues, and has concluded the process of substantive consultation with the Sambaa K'e Dene Band to accommodate outstanding rights issues.
The North Slave Métis Alliance stated that it should be consulted regarding the Mackenzie Gas Project, and that the North Slave Métis Alliance was not adequately consulted by the Crown.
We held a hearing session in High Level, Alberta on 27 September 2006 to hear concerns from Northern Alberta communities. Although the Dene Tha' registered as an intervenor and filed evidence, they did not participate
in this session or our other hearing sessions. In November 2006 the Dene Tha' First Nation entered into a Settlement Agreement with Canada as settlement of litigation in relation to the project. In that agreement Canada would provide $25,000,000 to the Dene Tha' First Nation to, among other things, assist the Dene Tha' First Nation in addressing the socio-economic impacts associated with the project.
Views of the Board
The Proponents' consultation program When an application is filed, the National Energy Board's Filing Manual requires companies to demonstrate that they have identified, contacted and consulted with potentially affected groups and individuals prior to filing their application. Companies must learn about the concerns of people, and attempt to address those concerns to the fullest extent possible. They are also expected to continue their discussions with those who will be affected by their project as the regulatory process unfolds, and during the construction and operation phases of their project. The project application must contain detailed information on all aspects of company's consultation work, including a description of any unresolved issues or concerns.
The Proponents provided extensive details of their consultations with those groups, individuals, organizations, governments and Aboriginal people that will be affected by the Mackenzie Gas Project. They
documented more than 1,500 meetings, described the concerns that were raised over years of consultation, and provided details on how they have already or will address the concerns they heard. The Proponents responded to the concerns and input they received through their consultations with numerous changes to the design of the project, and through a range of commitments in the Socio-Economic Agreement. They have committed to continuing consultation throughout the life of the Mackenzie Gas Project.
We find that the Proponents designed and implemented an effective consultation program for the Mackenzie Gas Project. We accept that agreement on how to address concerns that were raised was not possible in all instances, and we are confident that some remaining issues will be further addressed by other regulatory institutions, federal departments and Aboriginal authorities at the permitting stage. In this regard, we will continue to work cooperatively with and support northern institutions and federal departments throughout subsequent approval phases.
Where our own conditions require further consultation by the Proponents, or require the Proponents to provide the National Energy Board with evidence of consultation, the National Energy Board will continue to evaluate the appropriateness and effectiveness of their efforts, including how any
concerns have been addressed. With respect to defining consultation in our conditions, we consider the recommendation by Alternatives North and Indian and Northern Affairs Canada to be helpful. The definition of consultation contained in Section 3 of the Mackenzie Valley Resource Management Act is broadly consistent with the full guidance we provide to all applicants and regulated companies in our Filing Manual. A preamble that defines consultation has therefore been included in our conditions. Regarding Environment Canada's request that evidence of their level of satisfaction for consultation be provided, we note that all interested and affected parties may contact us at any time regarding the Proponents' activities, and we would give appropriate consideration to any submission as it is received. In response to the Government of Yukon's request, we have amended Condition 27 so that the Government of Yukon will be included in consultations for the preparation of plans for a formal issues resolution program.
Potential impacts of the project We rely on those with an interest in a project to participate in our hearing process, so that we can hear directly from them and consider their views and concerns. We also encourage all those who might be affected by a project to engage early in the project planning and assessment stages with proponents, so that they may work collaboratively to address any interests
and concerns, including concerns related to the potential impacts of a project.
We heard directly from a number of parties about the potential impacts and benefits of the Mackenzie Gas Project, including the views and concerns of people in the Inuvialuit, Gwich'in, Sahtu and Dehcho regions. The Dehcho organizations and communities told us they would prefer that approval of the project be delayed until their land claim is settled, and their land use plan has been implemented. But we also heard about the social and economic aspirations of the people in the Inuvialuit, Gwich'in and Sahtu regions, and the benefits the Mackenzie Gas Project would bring to them. As Gwich'in Tribal Council President Richard Nerysoo told us, the Mackenzie Gas Project will “enable the Gwich'in to become self-sufficient and full participating members in a global society”. From the Government of the Northwest Territories, we also heard that the project will allow the residents of the North to move toward economic self-sufficiency.
We are encouraged by Grand Chief Gargan's view that sufficient time is available before the project is constructed to make concrete progress on, and perhaps to finalize, a land claim agreement for the Dehcho Region, and to implement a Dehcho land use plan. We are further encouraged that sufficient opportunity would also be available before the project proceeds
to construction for the Proponents and Dehcho organizations and communities to make progress toward concluding any additional agreements, such as access and benefits agreements, to address remaining mutual interests and concerns.
Through their commitments and adjustments to the project, the Proponents have addressed many, but not all, of the concerns raised with them. We were also made aware of unresolved concerns during our hearing and through the Joint Review Panel Report, including the specific concerns raised by Aboriginal groups.
Throughout its hearing process, the National Energy Board requires an applicant to consult with Aboriginal groups in order to determine their concerns, and to attempt to address them to the extent possible. If there are concerns that remain unaddressed after consultation, the National Energy Board can impose conditions to address them. In our hearing, we considered the concerns of Aboriginal people when making our decision, and our conditions address these concerns. With the Proponents' measures and commitments, and the requirements contained in our conditions, we believe the concerns raised by parties and Aboriginal groups have been or will be adequately addressed, and identified impacts will be effectively mitigated.
Through this process, as also discussed in section 1.3 of Volume 1, and the Board's assessment of the information it has received throughout, we have determined that our decision is consistent with section 35 of the Constitution Act, 1982.
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