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26491Report of JRP for Enbridge Northern Gateway Project: Aboriginal interests and consultation with Aboriginal groups

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  • Don Bain
    Dec 19, 2013
      1. Report of the Joint Review Panel for the Enbridge Northern Gateway Project<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprt-eng.html> > Considerations
      2. http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html
      4 Aboriginal interests and consultation with Aboriginal groups
      Top of Page<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#cn-tphp>
      Contents

      4 Aboriginal interests and consultation with Aboriginal groups<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s4>

      4.1 Northern Gateway's consultation with Aboriginal groups<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s41>

      4.1.1 Northern Gateway's Aboriginal engagement program design<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s411>

      4.2 The Government of Canada's consultation processes with Aboriginal groups<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s42>

      4.3 Aboriginal groups' participation in the Panel's process<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s43>

      4.3.1 Concerns raised about Northern Gateway's consultation<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s431>

      4.3.2 Concerns raised about Crown Consultation<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s432>

      4.4 Views of the Panel<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s44>

      4.5 Northern Gateway's approach to assessing potential project effects on rights and interests of Aboriginal groups<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/$s45>

      4.5.1 Effects on traditional land and marine uses and resources<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s451>

      4.5.2 Information and concerns received by Northern Gateway<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s452>

      4.5.3 Proposed mitigation measures<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s453>

      4.6 Evidence provided by Aboriginal groups to the Panel<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s46>

      4.7 Views of the Panel<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#s47>
      Top of Page<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#cn-tphp>
      4 Aboriginal interests and consultation with Aboriginal groups

      [http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/mg/vlm2mg4.jpg%5dThe 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.
      Top of Page<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#cn-tphp>
      4.1 Northern Gateway's consultation with Aboriginal groups

      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."
      Top of Page<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#cn-tphp>
      4.1.1 Northern Gateway's Aboriginal engagement program design

      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:

      * recognizing legal and constitutional rights possessed by Aboriginal peoples;
      * creating sustainable benefits for Aboriginal peoples;
      * offering opportunities for Aboriginal peoples to purchase equity;
      * proactively encouraging procurement, sole sourcing;
      * implementing additional measures to hire more Aboriginal peoples for Northern Gateway's permanent workforce and joint venture opportunities for Aboriginal peoples; and
      * supporting training, environmental stewardship, and community investment.

      The company said that the objectives and principles of its Aboriginal consultation program were to:

      * identify and engage Aboriginal groups or Métis regions located within 80 kilometres of either side of the project corridor and the Kitimat Terminal, or whose traditional territory may overlap with the project corridor (the engagement area);
      * understand the interest in project engagement of Aboriginal groups located outside the engagement area;
      * provide timely information about the project to facilitate meaningful opportunities for input into project planning, design, construction, and operations;
      * initiate opportunities for Aboriginal groups to share their traditional knowledge of lands potentially affected by the project, and to identify interests and concerns regarding the project;
      * provide information on the ways in which Aboriginal group concerns have been considered, taken into account, or acted on, as appropriate, by Northern Gateway in project design and planning, construction, and operations;
      * engage in ongoing dialogue with Aboriginal groups throughout the various stages of the project;
      * provide opportunities for Aboriginal groups to identify environmental effects of the project on Aboriginal interests;
      * provide opportunities for Aboriginal groups to assess the effects of the project on traditional use;
      * facilitate an understanding of the results of the environmental assessment process;
      * identify and pursue Aboriginal group participation in the project through community and economic development initiatives;
      * provide capacity funding to assist Aboriginal groups' participation in Northern Gateway's engagement program, and to support their participation in the regulatory and environmental assessment process;
      * provide Aboriginal groups with opportunities to derive sustainable benefits from project-related activities that arise throughout project development, construction, and operations; and
      * enable Northern Gateway to avoid or mitigate potential adverse effects and enhance positive effects of the project on Aboriginal interests wherever reasonable and feasible.

      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.

      Protocol agreements

      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:

      * established processes where consultation can be conducted in a timely manner throughout the regulatory and environmental review process;
      * established a process for participating Aboriginal groups to identify concerns they may have relating to the project and discuss options for minimizing, mitigating, or resolving those concerns;
      * facilitated cooperation between the parties to identify opportunities for participating Aboriginal group involvement in economic development initiatives associated with the project;
      * facilitated informal resolution of disputes, if any arise;
      * provided funding to cover certain costs associated with participating in the regulatory and environmental review of the project; and
      * provided opportunities for the Aboriginal groups to participate in environmental fieldwork discussions and Aboriginal Traditional Knowledge (ATK) budget discussions.

      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's consultation activities with Aboriginal groups

      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:

      * formal recognition as a "Band" as defined in the Indian Act and recognized by Indian and Northern Affairs Canada (now Aboriginal Affairs and Northern Development Canada);
      * constitutionally-protected Aboriginal rights, lands, and land uses as defined by section 35 of the Constitution Act, 1982;
      * proximity of a reserve or other protected land base to the project right-of-way; and
      * proximity of traditional lands and territories to the project right-of-way.

      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:

      * letters of introduction and follow-up letters, including information about the regulatory application filing date and contact information for the Canadian Environmental Assessment Agency and its website;
      * mail-outs, brochures, and newsletters
      * personal meetings and visits to communities;
      * telephone discussions and email correspondence;
      * attendance, presentations, and informal discussions at community events and conferences;
      * open houses and community information sessions;
      * Enbridge Northern Gateway Project website;
      * pipeline and marine discussion guides; and
      * toll-free information telephone number.

      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:

      * 'not applicable' (n/a), which included those that were: 1) offered 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;
      * 'pending engagement', which included those where discussions had not yet taken place regarding the nature and scope of an Aboriginal Traditional Knowledge study. Northern Gateway said that it would continue to offer these Aboriginal groups the opportunity to prepare an Aboriginal Traditional Knowledge report;
      * 'scoping', which referred to those studies where Aboriginal Traditional Knowledge facilitators were working with the Aboriginal group to determine the scope and parameters of the Aboriginal Traditional Knowledge report;
      * 'underway', which included studies where the Aboriginal Traditional Knowledge budget was approved and work was in progress;
      * 'completed', which referred to those where Aboriginal Traditional Knowledge reports were completed but had not been through a community review and sign-off process, or shared with Northern Gateway as of February 2013; and
      * 'released', which referred to studies with reports that had been through the community review and sign-off process and were available upon request, subject to consent from the Aboriginal group.

      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:

      * general project information (including its timeline, its description, its need, construction and operations of the pipelines, pump station locations, route selection, tanker maneuverability in specific water channels, the project cost, job numbers created by the project, pipeline ownership, and Northern Gateway's approach to project sustainability);
      * effects on the environment (including wildlife, groundwater, cumulative effects, increased tanker traffic and proximity of shipping routes to fishing and marine areas, air quality, fisheries, coastal marine life and communities, environmental standards, watercourse crossings, and increased access to sensitive areas);
      * logistics, safety, and emergency response (including pipeline integrity, mitigation measures, and compensation);
      * effects on land use (including reserve lands traversed by the project, traditional and non-traditional use, Aboriginal and treaty rights, trap lines and trappers issues, routing of the pipeline corridor, and proximity of construction camps);
      * traditional knowledge and participation of Aboriginal groups in Aboriginal Traditional Knowledge studies (including Elder participation to complete such studies; historical, archaeological, and palaeontological materials and resources; and traditional information confidentiality);
      * process issues (including capacity funding, participation in the regulatory and environmental review process, Aboriginal and treaty rights, Keyoh holders, Crown Consultation, third party technical review, and long-term Aboriginal engagement); and
      * community and economic development (including economic opportunities, employment and training, business and procurement contracts, community investment, equity investment, and project legacy).

      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:

      * relocated pipelines onto Alexander Indian Reserves Nos. 134 and 134A as a result of negotiations with the Alexander First Nation;
      * relocated Whitecourt pump station onto the Alexis Indian Reserve No. 232, as requested by the Alexis Nakota Sioux Nation;
      * relocated Bear Lake pump station and pipelines off the Sas Mighe Indian Reserve No. 32, as requested by the McLeod Lake Indian Band;
      * revised Pembina River crossing method;
      * revised Athabasca River crossing;
      * revised Smoky River crossing method;
      * relocated Missinka River west crossing location;
      * relocated Parsnip River crossing location and revised crossing method;
      * revised Muskeg River crossing method;
      * revised Salmon River crossing method;
      * relocated Owen Creek crossing location and revised crossing method;
      * relocated Morice River crossing location;
      * relocated Gosnell Creek crossing location and crossing;
      * relocated Clore River crossing location and revised crossing method;
      * relocated Hunter Creek crossing location;
      * relocated Chist Creek crossing location and revised crossing method;
      * revised Cecil Creek crossing method; and
      * revised Little Wedeene River crossing method.

      Northern Gateway said that concerns were expressed by Aboriginal groups about potential project effects on aspects of Aboriginal culture, in particular:

      * traditional economic activities, especially harvesting for food;
      * land resources as key elements of traditional culture;
      * preservation and transmission of traditional knowledge; and
      * cumulative impacts of industrial development.

      The company also said that substantial baseline information was provided through Aboriginal Traditional Knowledge studies, including the importance and use of:

      * land, wildlife, and natural resources;
      * sacred places, spiritual beliefs, and practices; and
      * Aboriginal languages.

      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:

      * marine transportation safety;
      * the proposed construction of berths and a tank terminal; and
      * potential opportunities specific to coastal British Columbia in employment, training, procurement, and equity participation.

      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:

      * pipeline safety and integrity;
      * location of pump stations and block valves; and
      * potential opportunities, specific to terrestrial British Columbia and Alberta, for employment, training, procurement, and equity participation.

      Northern Gateway also noted the initiatives it developed in response to the interests and concerns expressed by Aboriginal groups, including:

      * an Aboriginal Economic Benefits Package made available to eligible Aboriginal groups along the pipeline route as well as to coastal Aboriginal groups with interests in, or adjacent to, shipping routes; and
      * identification of additional mitigation measures during detailed design and route selection for reducing effects of project construction on traditional use.

      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:

      * Coastal First Nations / Turning Point Initiative;
      * Council of the Haida Nation (Old Masset Village Council, Skidegate Village Council);
      * Hartley Bay (Gitga'at First Nation);
      * Gitxaala Nation (Kitkatla);
      * Kitamaat Village Council (Haisla Nation);
      * Kitasoo/Xaixais Nation;
      * Lax Kw'alaams First Nation;
      * Metlakatla First Nation; and
      * Skidegate Band.

      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*<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#fn1nd>

      Northeast Alberta

      Beaver Lake Cree Nation

      n/a



      Saddle Lake (Saddle Lake Cree Nation) (i)

      Completed and released

      DEC 2008
      SEPT 2011

      Whitefish Lake (Whitefish Lake First Nation #128) (i)

      Completed and released

      JUN 2006
      SEPT 2008

      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



      Edmonton Region

      Alexander (Alexander First Nation) (i)

      Completed

      DEC 2005
      SEPT 2008

      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



      Blueridge Métis

      n/a



      Gunn Métis Local #55

      n/a



      Central Alberta

      Alexis Nakota Sioux Nation (i)

      Completed and released

      MAR 2006
      NOV 2008
      AUG 2009

      Paul (Paul First Nation)

      Completed and released

      DEC 2005
      JUL 2009

      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



      Northwest Alberta

      Aseniwuche Winewak Nation

      Completed and released

      MAY 2009
      JAN 2011

      Nose Creek Settlement

      Completed and released



      Lesser Slave Lake Indian Regional Council:





      Driftpile First Nation (i)

      Completed and released

      AUG 2008
      SEPT 2009

      Sawridge (Sawridge First Nation)

      Underway

      OCT 2008
      FEB 2010

      Sucker Creek (Sucker Creek First Nation) (i)

      Completed and released

      AUG 2008
      APR 2010

      Swan River First Nation (i)

      Completed and released

      SEPT 2008
      SEPT 2011

      Kapawe'no First Nation

      Completed

      JUL 2008

      Western Cree Tribal Council:





      Duncan's First Nation

      Completed and released

      OCT 2008
      MAR 2010

      Horse Lake First Nation (i)

      Completed and released

      MAY 2010

      Sturgeon Lake Cree Nation

      Completed

      OCT 2008
      APR 2010

      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
      OCT 2009

      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
      NOV 2010

      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
      OCT 2010

      Wet'suwet'en First Nation

      Completed and released



      Stellat'en First Nation

      Pending engagement



      Yekooche (Yekooch First Nation)

      Completed

      JUL 2008
      SEPT 2010

      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
      MAR 2010

      Skin Tyee Nation

      Completed and released

      APR 2006
      FEB 2009

      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
      JUN 2009

      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




      *<http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2chp4-eng.html#fn1lnk> 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.
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      4.2 The Government of Canada's consultation processes with Aboriginal groups

      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:

      * Phase I: Initial engagement and consultation on the draft Joint Review Panel Agreement
      * Phase II: Panel process leading to oral hearings
      * Phase III: Oral hearing and preparation of the Panel's final report
      * Phase IV: Consultation on the Panel's final report
      * Phase V: Regulatory permitting

      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:

      * their traditional knowledge with respect to the environmental effects of the project;
      * the effects that any change in the environment resulting from the project may have on their current use of lands and resources for traditional purposes; and
      * the nature and scope of their potential or established Aboriginal and treaty rights, the impacts that Crown conduct in respect of the project may have on those rights, and appropriate measures to avoid or mitigate such impacts.

      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.
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      4.3 Aboriginal groups' participation in the Panel's process

      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.
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      4.3.1 Concerns raised about Northern Gateway's consultation

      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.
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      4.3.2 Concerns raised about Crown Consultation

      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:

      * Alexander First Nation said that, although the proposed project was made known to it in 2002, and after making repeated requests for government involvement, the government's engagement had been extremely limited.
      * The Haisla Nation said that it asked for direct consultation with the federal government and was told that it would have to wait until after the process is complete in 2013.
      * The Office of the Wet'suwet'en said that there had been no direct engagement with Crown authorities and, therefore, there had been no meaningful consultation.
      * Gitxaala Nation questioned whether the Government of Canada considered the hearings to constitute engagement between the Crown and the Gitxaala.
      * The Heiltsuk Tribal Council said that it does not consider the Panel's process to be consultation as required by law, that it was not adequate for the purpose of consulting the Heiltsuk community or for addressing their concerns, and that, by integrating consultation activities with the hearing process, some groups might not have the capacity to participate.
      * Several Aboriginal groups asked whether the Government of Canada had delegated any aspects of its duty to consult to Northern Gateway.

      In response to the specific and general concerns raised, the Government of Canada said that:

      * it had not delegated to Northern Gateway aspects of Canada's consultation or accommodation obligations and that it is relying on the Panel's process and Northern Gateway's broader consultation efforts, to the extent possible, to assist the Crown in fulfilling its legal duty to consult;
      * the purpose of using the Panel's process as a way to fulfill the Crown's legal duty to consult was to have all the information about potential impacts put on the public record by being presented to the Panel "in an open and transparent manner";
      * consultation had been ongoing for at least 4 years and that it will consider information that goes beyond the final hearing stages;
      * it had gathered information throughout the process, including Northern Gateway's consultation record, oral evidence, and oral statements, and all other written evidence that was placed on the record;
      * it used a "whole-of-government approach" whereby departments worked together to ensure that they have a collective voice while engaging in consultation activities;
      * meetings that took place early in the process - throughout 2008 and 2009 - gave groups an opportunity to review the draft Joint Review Panel Agreement, which stated that the Crown would integrate Aboriginal consultation into the Panel's process to the extent possible; and
      * early consultation should have resulted in Aboriginal groups understanding their opportunity to be meaningfully consulted on the project.

      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:

      * participant funding would be available to Aboriginal groups through the Canadian Environmental Assessment Agency for carrying out Phase IV consultation;
      * it would then take into consideration these outstanding concerns before making any final decisions on the project; and
      * the format for this stage of consultation would depend on the outcome of the Panel's process.
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      4.4 Views of the Panel

      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.

      Northern Gateway's consultation with Aboriginal groups

      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<br/><br/>(Message over 64 KB, truncated)