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Life in the Regulatory Blender

Resource Rulers: Fortune and Folly on Canada?s Road to Resources

The NEB's role is undergoing intense scrutiny as it commences another major pipeline certification process. The National Observer just broke the story of the NEB's private meetings with the Energy East proponent Trans-Canada Pipelines, along with other public influencers, in advance of that hearing process getting underway. The NEB says it was all a misunderstanding; but tellingly the story broke right after the Board's permits authorizing Enbridge's controversial Northern Gateway project were quashed by the Federal Court of Appeal for lack of proper native consultation. This one-two punch means the NEB' quest for public credibility is still very much a work in progress; to which I?m proposing an obvious solution.

In my last article for First Nations Voice, I outlined the Harper Government's legal losing streak at the hands of natives, and referred to its 10 years in power as a decade of 'systemic stagnation' on the native file. Clearly the consequences of this malaise are still playing out in the regulatory process, wherein natives are becoming more strident in asserting their legal empowerment. Witness this exchange between the NEB's chairman and a firebrand native leader that occurred at the recent AFN Energy Strategy Forum in Vancouver:

"The legitimacy of the NEB has (long) been in question and that is still the case now. Nothing has changed in your process that creates a prejudice on our First Nations' title. I appreciate your presence being here today as it can't be easy on you. The Prime Minister says that the process is broken and the NEB rules keep changing. Industry lawyers at every hearing contradict our Elders; we're not going there to be questioned; it's not a legitimate form of consultation and only adds prejudice."

Kudos to NEB Chair Peter Watson for addressing the AFN's Energy Forum in plenary session and for taking this question from Kanesatake Mohawk Chief Serge Simon - who got to the microphone first and fired this broadside across the NEB's bow.'

"Yes it's not easy being in the NEB these days. I appreciate your concerns but they are really larger issues than we (at the NEB) can resolve. We've enhanced our efforts to embrace traditional knowledge and recently sent two board members to attend a First Nation community ceremony - as relationship ambassadors." (Chair's response)

Like it or not - disagree with it or not - this question and answer is a remarkably accurate reflection of where the native empowerment movement is at vis-a-vis regulatory processes in mid-2016. It's a snapshot of life in the regulatory blender; at least they're talking to each other directly, as opposed to in court through lawyers.

This same decade spawned the native legal winning streak, that in early 2014 broke through the 200 win mark and today stands at 232. It's the main event driving the rise of native empowerment in the Canadian resources sector. It's why Chief Simon embraced aggressive language in questioning the NEB Chair; to give him a taste of the same medicine native participants experience when the NEB allows them to be cross-examined. It's not just because natives are frustrated (which they most certainly are) it's that natives are massively empowered by their legal winning streak - that they now expect to see applied to regulatory processes.

My proposed solution is for the NEB to not allow the cross-examination of Elders and Chiefs by project proponents. Quite the opposite, let them participate on their terms in order to tell their story. There's no productive role for proponent litigators. It also acknowledges the native legal winning streak, whereby I believe, they have earned the right to establish certain regulatory terms and conditions in hearings.

Life in the regulatory blender will likely not improve until such time as these roles and responsibilities are revamped. It's time for the NEB to show statesmanship by embracing new hearing procedures that level the playing field for First Nations. 

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