Memorandum of Understanding (MOU) between the Canada Energy Regulator and Natural Resources Canada

Commitments regarding
Indigenous consultations for the Trans Mountain Expansion Project West Alternative Route

I. BACKGROUND

On October 9, 2020, Trans Mountain Corporation (TMC) submitted an application to the Canada Energy Regulator (CER) for a variance of Certificate OC-065, under section 190 of the Canadian Energy Regulator Act (CERA), to change the approved route of the Trans Mountain Expansion Project (TMEP) through the Coldwater Valley. The proposed alternative route is known as the West Alternative Route.

When making a decision, order, or recommendation under the CERA, the Commission must consider any adverse effects that the decision, order, or recommendation may have on the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, as set out in section 56(1) of the CERA.

II. PURPOSE

This Memorandum of Understanding (the Memorandum) describes the roles and responsibilities of the CER and NRCan in relation to consultation with Indigenous groups potentially impacted by the Project as a result of the variance application. This collaboration is intended to ensure meaningful, two-way discussions with potentially impacted Indigenous groups, in a manner that builds on previous consultations during Phase III of the Project.

The commitments outlined in this Memorandum do not fetter the statutory powers or authorities of the signatories to this Memorandum.

III. ROLES AND RESPONSIBILITIES

Preamble

With the coming into force of the CERA, the CER will serve as the Crown lead for consultation with Indigenous peoples potentially impacted by the proposed TMX route variance, whereas NRCan served as the Crown consultation lead for Phase III consultations on the TMX Project. The CER and NRCan will work collaboratively to ensure an effective process that builds on previous dialogue and the existing Crown Consultation Record.

Public Hearing

The Commission of the CER may hold a public hearing in respect of any other matter beyond the issuance, suspension, or revocation of a certificate, if the Commission considers it appropriate and publicly releases its reasons for holding the hearing, as set out in section 52(3) of the CERA. The CER must establish processes considered appropriate to meaningfully engage with the public – and, in particular, Indigenous peoples and organizations – when public hearings are held, as set out in section 74 of the CERA. The CER must also establish a participant funding program to facilitate the participation of the public – and, in particular, Indigenous peoples and organizations – in public hearings, as set out in section 75 of the CERA.

If the Commission decides to hold a public hearing to adjudicate the variance application, it will issue a hearing order. The hearing order will outline the matters involved in the adjudication process, and dates by which submissions may be made by the relevant parties, including TMC, impacted Indigenous groups, members of the public, and other affected parties, as well as relevant timelines.

The hearing process may include, but not be limited to, the following matters, to be confirmed by the Commission:

• submission of written evidence;
• oral Indigenous Knowledge sharing;
• information requests; and
• final arguments.

Consultation with Indigenous groups

Through the variance application adjudication process, the CER will serve as the primary Crown actor to consult with Indigenous groups potentially impacted by the route variance, and will do so in cooperation with NRCan, as the immediate past lead for Crown consultations with Indigenous groups on the Project during Phase III. NRCan will provide advice and support to the CER to help ensure an effective and efficient consultation process.

The CER will:

• review and finalize the list of potentially impacted Indigenous groups;
• propose the scope of consultation;
• provide notice to Indigenous groups potentially impacted by the route variance;
• carry out consultation activities in a manner consistent with the requirements of recent court decisions; and
• prepare the Crown Consultation and Accommodation Report containing an individualized analysis for each potentially impacted Indigenous group and submit it into the hearing record.

Canada’s duty to consult and, where appropriate, accommodate potential or established Aboriginal or treaty rights, will be discharged through the consultation activities carried out by the CER and the variance application adjudication process. The CER will determine whether the duty to consult and, where appropriate, accommodate has been discharged, pursuant to section 56(1) of the CERA.

Information Exchange, Coordination and Collaboration

NRCan will continue to engage with the CER, the Proponent (Trans Mountain Corporation), and the Government of British Columbia to facilitate the exchange of information as well as coordination and collaboration among interested parties, as appropriate.

Specifically, NRCan will:

• provide to the CER a complete list of Indigenous groups potentially impacted by the route variance;
• share, as appropriate, information from the existing Crown Consultation Record;
• if requested, facilitate and attend consultation meetings with CER staff, in order to build on the relationship that NRCan has established with the potentially impacted Indigenous groups;
• provide other support and advice, as requested, to the CER during the route variance application review process;
• coordinate any necessary accommodation measures on behalf of Canada, in conjunction with the Proponent where appropriate; and,
• in consultation with the CER Crown Consultation Team, support the Minister of Natural Resources in tracking progress in the variance application adjudication process and associated Indigenous consultation activities.

Communication of Roles and Responsibilities

The CER will publish this Memorandum publicly on its website, which will serve to inform the Proponent, potentially impacted Indigenous groups, and members of the public. Both parties will also communicate these respective roles and responsibilities during the course of the consultation process.

SIGNATORIES

The Parties hereto on behalf of their duly authorized officials have signed this Memorandum, in counterpart, on the dates indicated below.

Date modified:

2023-01-12