There are a number of considerations for pipeline promoters developing projects through First Nations’ land, including the environmental impact of the project, and the ability of indigenous peoples to continue traditional practices such as hunting, fishing, trapping, and gathering, both during construction and once the pipeline project is complete. Many of these must be addressed before an application is lodged with the relevant regulatory body.

Canada’s National Energy Board says that applicants for pipeline projects are expected to include the following information in their applications:

• Identification of the First Nations’ communities affected by the project;
• When and how the First Nations’ communities were contacted;
• Evidence that the applicant has provided potentially affected indigenous people with a project overview that clearly explains the nature of the project, its routeing, proposed construction periods, possible environmental and socio-economic impacts and information regarding proposed measures to minimise such impacts; and,
• Information regarding the concerns raised by indigenous people, and whether or not those concerns are still outstanding or have been addressed.

Getting the cost-benefit ratio right for indigenous stakeholders

Cheryl and Janis Brooks say that concerns about a project’s impacts on Aboriginal Title and Treaty Rights can potentially impact on the approval process for pipeline projects.

“This is because First Nations may fear the project due to lack of knowledge of the industry and its safety and environmental practices, or the communities may lack the time, capacity, or financial resources to engage with project developers – sometimes resulting in opposition because it is the only feasible response given their circumstances.”

Cheryl and Janis Brooks also highlight that indigenous communities may have many companies vying for their time and attention, and it may be difficult for a promoter to get its project on their agenda.

Despite concerns, Cheryl and Janis Brooks note that pipeline projects have the potential to benefit First Nations’ communities, through community investment in infrastructure, education, training and employment of First Nations’ individuals, as well as business development opportunities for First Nations’ companies.

Relationship building

Where a pipeline project is proposed to cross First Nations’ land, it will be essential for the designers to establish effective relationships with First Nations’ communities.

Cheryl and Janis Brooks recommend that senior level support is engaged to create a real indigenous relations strategy that will benefit both the company and the First Nations.

They also stress that the relationship-building should start early, and as much time as possible should be spent listening and learning.

“Communicate openly and frequently and learn about and engage in meaningful and lawful consultation.”

Involving First Nations in plans to mitigate possible impacts before they happen, as well as being creative and flexible in identifying the benefits and opportunities for First Nations’ communities created by the project, is the key to ensuring a timely regulatory approval process.

“Develop and implement policies that support employment, the incorporation of traditional environmental knowledge and procurement opportunities, and ensure that all your employees and contractors are required to implement those policies,” say the Indigenuity consultants.

Reaching a consensus

Indigenuity recommends that companies build a comprehensive process that facilitates meaningful engagement with First Nations’ communities on the legal question of whether and how a proposed activity impacts on their rights and interests.

“We see the key components of an effective process as ensuring that you have correctly identified all of the potentially impacted First Nations’ or Native American tribes and introduce your company representatives to those communities as early as possible,” say Cheryl and Janis Brooks.

“Establish a positive climate for ongoing dialogue from the beginning and provide explicit details of the proposed activity, and the environmental assessment and regulatory processes that will be undertaken.

“Finally pipeline promoters need to respect the fact that indigenous governments and leadership have numerous competing demands on their time, and plan projects in such a way that the project team has realistic expectations regarding the time required for responses and inputs.”