Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador
Crown Consultation Approach for the Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador
Document reference number: 165
May 2, 2019
1. Overall Approach
1.1 Purpose
This document sets out the intended approach for federal Crown consultation with Indigenous peoplesFootnote 1 in relation to the conduct of a Regional Assessment as described in the Agreement to Conduct a Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador entered into by the Governments of Canada and Newfoundland and Labrador ("the Agreement").
1.2 Application
This approach applies to all aspects of Crown consultation in respect of this Regional Assessment, from the early planning of the Regional Assessment to the submission by the Regional Assessment Committee ("the Committee") of its Report to Ministers. If required, this approach may also apply to additional Crown consultation on issues arising from the Committee's Report.
1.3 Regional Assessment
The Governments of Canada and Newfoundland and Labrador are interested in improving the effectiveness and efficiency of the environmental assessment process as it applies to oil and gas exploration drilling off Eastern Newfoundland, while at the same time ensuring the highest standards of environmental protection continue to be applied and maintained. This Regional Assessment will create a framework for evaluating and managing the environmental effects of future offshore exploration drilling projects in this region that will:
- build upon the experience and knowledge gained in assessing previous projects;
- enable effective management of environmental effects;
- reduce consultation burden on Indigenous communities and stakeholders; and ? result in more efficient project reviews for exploration programs.
The Regional Assessment will use best available science and Indigenous knowledge and will include consideration of the known physical, biological, social and economic characteristics of the Regional Assessment Study Area (see map at Annex A).
1.4 Objectives of Crown Consultation for this Regional Assessment
The approach to Crown consultation for this Regional Assessment has the following objectives:
- build awareness and understanding amongst Indigenous peoples of how the federal Crown intends to meet any potential legal duty to consult that may arise from this Regional Assessment and/or future contemplated Crown conduct in the Study Area with respect to offshore oil and gas exploratory drilling;
- clarify the role of the federal Crown in undertaking consultations with Indigenous peoples in part through reliance on the participation of Indigenous groups in the Regional Assessment;
- delegate procedural aspects of Crown consultation to the Regional Assessment Committee and as necessary complement the Indigenous engagement activities of the Committee; and
- fulfill any potential duty to consult by:
- actively encouraging the participation of potentially affected Indigenous groups in the conduct of the Regional Assessment, including as part of the associated Technical Advisory Group;
- consulting with Indigenous groups on the Committee's draft Regional Assessment Report; and
- engaging in meaningful and responsive two-way dialogue on issues raised, including the potential application of this Regional Assessment to the development of Regulations or future decisions pertaining to exploratory drilling projects in the Study Area.
In pursuit of the above objectives, the Crown will provide this Consultation Approach document to the Regional Assessment Committee, as well as the potentially affected Indigenous groups identified by the Crown for consultation during the Regional Assessment. As noted above, the Crown will rely on the Regional Assessment to help meet any duty to consult, and will consider information provided by Indigenous groups to the Regional Assessment Committee that is shared with the Crown and/or included in the Regional Assessment Report. Such information may include potential adverse impacts of exploratory drilling projects in the Study Area on potential or established Aboriginal and Treaty rights. The Crown will also consider information provided during the Regional Assessment on measures proposed for avoiding, mitigating or otherwise accommodating for these potential adverse impacts.
Crown consultation will be conducted in a manner consistent with the honour of the Crown and at an appropriate level, taking into account the nature and scope of potential or established Aboriginal and Treaty rights and potential impacts on those rights arising from future decisions pertaining to exploratory drilling projects in the Study Area.
The Government of Canada remains committed to the approach outlined in the February 2018
Consultation Paper on Approach to Revising the Project ListFootnote 2, and reflected again in the May 2019 Discussion Paper on the Proposed Project ListFootnote 3. The approach proposed in these consultation papers is to exempt offshore exploratory wells from undergoing a project-specific federal environmental assessment in areas where a regional assessment has been carried out and where the proposed project conforms with the conditions for exemption as approved by the Minister for that regional assessment.
As such, Crown consultation for this Regional Assessment will remain flexible and may need to adapt to take into account that this process could serve as a strategic planning tool to inform future decisions pertaining to offshore exploratory drilling in the Study Area.
2. Roles and Responsibilities
2.1 Regional Assessment Committee
As described in the Final Agreement to conduct the Regional Assessment, a Committee has been established by the federal Minister of the Environment, with the mandate to carry out a Regional Assessment under the Canadian Environmental Assessment Act, 2012 (CEAA 2012). The Committee has all the powers and obligations set out under section 77 of CEAA 2012.
The Committee will use its knowledge and experience to conduct a Regional Assessment of the environmental effects of existing and anticipated exploratory drilling in the eastern portion of the Canada - Newfoundland and Labrador Offshore Area. Pursuant to s.4.18 of the Agreement, the Committee may receive information from Indigenous peoples on the nature and scope of any rights protected by section 35 of the Constitution Act, 1982, in the area of the Regional Assessment, as well as information on the potential adverse environmental effects that exploratory drilling may have on these rights.
Assisted by a Task Team and a Technical Advisory Group, the Committee will carry out the following activities described in further detail in the Agreement, as well as consider the specific factors outlined in Appendix A of the Agreement:
- engage Indigenous groups and others that have knowledge relevant to the Regional Assessment or whose interests and uses may be affected by exploratory drilling;
- analyse all information received from Indigenous communities and other participants and identify potential effects, mitigation measures, any information gaps and recommendations to address these gaps, as appropriate;
- document the results of the Regional Assessment in a Report including provision of advice to Ministers on how the results of the Regional Assessment could be used to inform future decisions related to offshore exploration drilling in the region; and
- seek comments from the public and Indigenous groups on the draft Report to federal and provincial Ministers.
2.2 Canadian Environmental Assessment Agency
The Canadian Environmental Assessment Agency (Agency) is responsible for coordinating an appropriately scaled and flexible Crown consultation process with respect to this Regional Assessment. The Agency is also responsible for documenting its consultation process in anticipation that the Regional Assessment will be relied upon by decision makers in future, to inform policies, regulatory development or project-based decision making in respect of exploratory drilling projects proposed within the Study Area.
The Regional Assessment conducted by the Committee is the primary means by which the Crown intends to gather information about the potential impacts of proposed offshore oil and gas exploratory drilling projects in the Study Area on the exercise of existing or asserted Aboriginal and Treaty rights. As part of the Committee's Task Team, Agency staff will support the Committee in engaging Indigenous communities, and will coordinate the participation of other federal government departments as required.
As Crown Consultation Lead on behalf of the Government of Canada, the Agency will also coordinate research and analysis required to inform whether and to what extent, a legal duty to consult may apply to the conduct of the Regional Assessment itself, or to potential future federal decisions that may rely on aspects of the Committee's findings and recommendations. As required, the Agency may compile a separate summary report of Crown consultations to advise Ministers following the conclusion of the Regional Assessment. The Agency would consult Indigenous groups on the content of that report as appropriate.
Agency staff from the Atlantic Region will lead and coordinate any Crown consultation on behalf of the Government of Canada to ensure continuity and consistency with existing CrownIndigenous relationships. The Agency's National Programs and Crown Consultation Divisions will offer strategic advice and support throughout the Regional Assessment.
The Agency's Crown Consultation Lead will be the principal Government of Canada official consulting with Indigenous groups in respect of the Regional Assessment. The Agency tasks its Crown consultation practitioners to maintain accurate records of each discussion with an Indigenous group, and each consultation team member is selected based on their specific skill set and experience. The Crown Consultation Lead may use a variety of means to consult with groups such as written correspondence, observation of Committee-led Indigenous engagement sessions, provision of opportunities to review and comment on draft documents such as the Committee's Report, and teleconferences or in-person meetings as appropriate. To ensure an effective and efficient process for all participants, the Crown intends to rely on Indigenous participation in the Regional Assessment as well as any information provided by Indigenous groups to the Committee during the Regional Assessment.
In support of the Committee's work, the Crown Consultation Lead will be authorized by the Agency to discuss any matter raised by an Indigenous group during this Regional Assessment, including concerns with proposed exploratory drilling projects and their potential effects, potential impacts on Aboriginal and Treaty rights, potential accommodation measures for those impacts, and any other interests.
3. Details of the Approach
3.1 Evolution of the Approach
The Agency recognizes that each Indigenous group may have unique interests regarding the Regional Assessment and any potential future decisions relating to proposed offshore exploratory drilling projects. As such, the Agency's approach is to consult broadly and on a good governance basis with all potentially interested Indigenous groups in the Atlantic Region and eastern Québec, in a spirit of collaboration and mutual understanding.
The Agency began considering its approach to Crown consultation in 2017 when it first contacted Indigenous groups throughout Atlantic Canada to introduce the Regional Assessment, proposed as the first Regional Assessment conducted under CEAA 2012.
The application of the Regional Assessment concept to the eastern portion of the Canada - Newfoundland and Labrador Offshore Area offers a proactive planning tool that can be used to gain a better understanding of the potential effects of exploratory drilling projects on the environment, and on the interests of Indigenous peoples, the public and a other stakeholders in the region.
Given the high degree of interest expressed by Indigenous groups in the proposed Regional Assessment, in September 2018 the Agency provided a draft version of the Agreement and formally requested comments from Indigenous groups and the public. To support this review, the Agency provided funding to each Indigenous group identified as potentially having an interest in the Regional Assessment.
Comments received from Indigenous groups on the draft Agreement were considered during the finalization of the Agreement and posted on the Canadian Environmental Assessment Registry website. Following the establishment of the Committee in April 2019, the Agency shared this document with the Committee to help inform its own program of Indigenous engagement for the Regional Assessment
3.2 Crown Consultation in Relation to the Committee's Work
The Government of Canada has adopted a whole-of-government approach to Crown consultation. This approach involves federal authorities working together, and with other jurisdictions where appropriate, to ensure any identified legal duty to consult Indigenous groups is fulfilled in advance of federal decisions which may adversely impact the exercise of Aboriginal and Treaty rights recognized and affirmed under Section 35 of the Constitution Act, 1982. The Crown also consults for good governance such as to inform sound policy-making and the drafting of regulations, as well as for a variety of other relationship building and reconciliation objectives.
On this basis, Crown consultation will rely on the Committee-led Regional Assessment, with additional consultation activities as appropriate following the Regional Assessment Report. Crown consultation in the context of a Regional Assessment represents a new form of CrownIndigenous engagement that may evolve over time, with different approaches used than for consultations integrated into regulatory and project-based environmental assessment processes.
For this Regional Assessment, the Crown will be guided by federal policies including the
Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (2011)as well as the Principles Respecting the Government of Canada's Relationship with Indigenous Peoples (2017). These policies recognize that the honour of the Crown must guide the conduct of the Crown in all of its dealings with Indigenous peoples.
The Crown anticipates that the Regional Assessment will provide an open and transparent venue for Indigenous groups to bring concerns, comments and/or information forward to the Committee in a spirit of shared interest and mutual respect and understanding. Indigenous groups are therefore encouraged to bring information forward for the Committee's consideration on the nature and scope of any applicable rights protected under Section 35 of the Constitution Act, 1982, as well as information on the potential adverse impacts that exploratory drilling may have on the exercise of Aboriginal and Treaty rights.
Indigenous groups are also invited to propose appropriate measures to avoid, eliminate or mitigate such potential impacts on Aboriginal and Treaty rights. Information provided to the Committee will be used in consideration of the impacts that exploratory drilling in the Study Area may have on any Indigenous group and on the exercise of their rights. This information may also inform the Crown for consultation purposes, currently or in the future.
3.3 Specific Consultation Features
Crown consultation takes place on a continuum, and this Regional Assessment represents an early planning process which may inform future Government decisions about offshore exploratory drilling projects in the Study Area.
This consultation approach covers two primary phases relating to the Regional Assessment, and a third potential phase following the Regional Assessment:
1. Consultation on the process:
- potentially interested Indigenous groups are identified, and their input is sought on the draft Regional Study Agreement and Terms of Reference for the Regional Assessment Committee and Technical Advisory Group;
- ongoing feedback and dialogue with the Crown may include sharing views on the Crown's overall approach to consultation for the Regional Assessment (i.e. this document); and
- financial support to participate in the process is provided through the Agency's participant funding program.
Note: this period commenced in 2017 when the Agency initially contacted Indigenous groups to introduce the Regional Assessment and offer funding.
2. Indigenous community participation opportunities during the Regional Assessment:
- financial support provided through the Agency's participant funding program, or other sources as specified in the Agreement;
- Indigenous community representatives may participate in discussions of and receive and provide information through the associated Technical Advisory Group;
- engagement of Indigenous groups by the Committee may include participation in community meetings, open houses or other forms of engagement to be defined through discussions between the Committee and Indigenous groups; and
- opportunity will be provided to review the draft Regional Assessment Report and submit comments to the federal Crown (and share with the Committee).
Note: this period commenced in April 2019 with the finalization of the Agreement and the appointment of the Regional Assessment Committee.
3. Potential ongoing consultations following the Committee's Report:
By delegating the procedural aspects of consultation to the Committee, the federal Crown will rely on the Committee's Indigenous engagement activities and any information it receives to understand:
- the potential for offshore exploratory drilling activities in the Study Area to adversely affect the exercise of Aboriginal and Treaty rights; and
- avoidance, mitigation or other potential accommodation measures that can serve to address potential impacts.
After the Committee submits its Report to Ministers, additional Crown consultation activities will include notifying Indigenous groups when the Report is available, as well as any potential follow-up to the Report. Post-Committee Report consultation activities may also include identifying any outstanding concerns, seeking input from Indigenous groups on their experience participating in the Regional Assessment and consultation process, or recommendations from Indigenous groups on how to apply the findings or recommendations in the Report to future proposed exploratory drilling projects in the Study Area.
The intent of any post-Committee Report consultations carried out by the federal Crown will not be to repeat or duplicate the work of the Committee, but to validate the Report's findings, discuss how the Regional Assessment may be used in the context of future projects and decisions, and to identify, consider and potentially address any outstanding concerns raised by Indigenous groups in respect of the Report.
For consultations following the Committee's Report, the Agency will provide advance notification of any additional consultation opportunities, and may develop a separate summary report and/or briefing for Ministers based on the results of these consultations.
Table 1 below further outlines the key Agency-led consultation and anticipated Committee-led engagement opportunities available to Indigenous groups invited to participate in the Regional Assessment
3.4 Indigenous Groups to be Consulted during the Regional Assessment
The Agency has established a broad scope of consultation for the Regional Assessment based on a good governance approach, and in recognition that Indigenous communities throughout the Atlantic Provinces and eastern Québec exercise potential or established Aboriginal and Treaty rights that may be affected by exploratory oil and gas drilling and associated activities offshore Eastern Newfoundland Labrador.
The following Indigenous groups have been identified as having a potential interest in this Regional Assessment:
Nova Scotia
- Kwilmu'kw Maw-Klusuaqn Negotiation Office (representing 11 Mi'kmaq First Nations of Nova Scotia: Acadia First Nation, Annapolis Valley First Nation, Bear River First Nation, Eskasoni First
Nation, Glooscap First Nation, Membertou First Nation, Paqtnkek Mi'kmaw Nation, Pictou
Landing First Nation, Potlotek First Nation, Wagmatcook First Nation, Waycobah First Nation) - Millbrook First Nation
- Sipekne'katik First Nation
New Brunswick
- Mi'gmawe'l Tplu'taqnn Inc. (representing 8 Mi'gmaq First Nations of New Brunswick: Fort Folly First Nation, Eel Ground First Nation, Pabineau First Nation, Esgenoôpetitj First Nation, Buctouche First Nation, Indian Island First Nation, Eel River Bar First Nation, Metepenagiag Mi'kmaq Nation)
- Elsipogtog First Nation
- Wolastoqey Nation in New Brunswick (representing 5 Maliseet First Nations: Kingsclear First Nation, Madawaska Maliseet First Nation, Oromocto First Nation, Saint Mary's First Nation,
Tobique First Nation and Woodstock First Nation)
Prince Edward Island
- Mi'kmaq Confederacy of Prince Edward Island (representing Abegweit First Nation and Lennox Island First Nation)
Newfoundland and Labrador
- Innu Nation;
- Nunatsiavut Government
- NunatuKavut Community Council
- Qalipu First NationFootnote 4
- Miawpukek First Nation
Québec
- Mi'gmawei Mawiomi Secretariat (representing the Mi'gmaq of Québec: Listuguj Mi'gmaq Government, La Nation Micmac de Gespeg, and Micmacs of Gesgapegiag)
- Conseil des Montagnais de Nutashkuan
- Conseil des Innus de Ekuanitshit
The Indigenous groups identified for consultation may change as more information becomes available during the Regional Assessment.
Preliminary Depth of Consultation Assessment
A preliminary depth of consultation assessment was undertaken by the Agency based on publicly available information, recent environmental assessments in the Atlantic Region, and in collaboration with other federal departments and agencies. The purpose of this preliminary assessment is to understand, in an initial way, the potential for adverse impacts of offshore exploratory drilling projects in the Study Area, in respect of each Indigenous group's asserted or established Aboriginal or Treaty rights. Crown consultation is not a process through which the Government of Canada will recognize asserted Aboriginal rights, however, the Agency takes rights assertions at face value for the purposes of consultation planning.
The Agency's preliminary assessments are a planning tool used to inform the initial scope and design of the consultation process. Any new information made available to the Crown by Indigenous groups throughout the Regional Assessment or other consultation processes may require modifications to the Crown consultation approach. Any changes will be clearly documented and shared with the applicable Indigenous groups.
Potential exploratory drilling projects in the Study Area would be located far offshore and not within any known traditional territories. The environmental effects from such activities have been characterized in several project-specific environmental assessments as being of low magnitude. Therefore, the likelihood of adverse impacts on Indigenous communities as a result of these projects is considered for the preliminary consultation assessment to be low. The Agency has therefore identified consultation at the lower end of the Haida spectrum to be an appropriate starting point for the Regional Assessment.
Potential Accommodation Measures
Consideration of potential accommodation measures for Indigenous groups is an important element in meeting the duty to consult when there exists the potential for impacts to occur on Aboriginal and/or Treaty rights as a result of contemplated Crown conduct.
Should it be determined that the Regional Assessment could enable decisions that would result in potential adverse impacts on Aboriginal or Treaty rights, the Government of Canada will seek to ensure that recommended accommodation measures are appropriate to address these potential impacts.
Potential accommodation measures could include:
- proposed regulatory conditions specific to the Study Area;
- relevant federal laws, regulations, measures, policies or practices; and
- industry-wide and/or region-specific commitments and/or project-based mitigation.
Throughout the Regional Assessment and Crown consultation process, Indigenous groups are encouraged to propose potential mitigation and other accommodation measures that could address potential impacts on Aboriginal and Treaty rights.
4. Conclusion
The Agency will implement this Approach on behalf of the federal Crown in a manner that fulfills the principles and commitments outlined, along with the related Government of Canada objective of strengthening and renewing its relationships with Indigenous peoples in Canada.
The Agency looks forward to supporting the Committee in its work, and carrying out a meaningful, informative, respectful and collaborative dialogue with Indigenous groups as part of the planning, completion and eventual use of this Regional Assessment.
Table 1: Crown Consultation with respect to the Regional Assessment
| Key Process Step | Timeline | Activities |
|---|---|---|
| Regional Assessment and Consultation Planning | Fall 2017 – Spring 2019 |
Crown Consultation Approach
Regional Assessment Committee |
| Conduct of the Regional Assessment by Committee | Begins Spring 2019 |
|
| Committee-led Indigenous Engagement Sessions | Begins late Spring 2019 |
|
| Review of Draft Regional Assessment Report |
Fall 2019 (TBC) |
|
| Key Process Step | Timeline | Activities |
| Public Release of Final Regional Assessment Report | Late 2019 (TBC) |
|
| Follow-up on Regional Assessment | 2020 (TBC) |
|
Annex A – Study Area for the Regional Assessment
