On August 11, 2016, the Ontario Energy Board (OEB) issued a new edition of its Environmental Guidelines for the Location, Construction and Operation of Hydrocarbon Pipelines and Facilities in Ontario (the Guidelines). The stated purpose of the updates to the Guidelines is to “ensure that roles and obligations for the Crown’s duty to consult process for intra-provincial hydrocarbon pipelines are better defined.”

As set out in the OEB’s cover letter, under the revised Guidelines’ “enhanced duty to consult protocol,” the Ministry of Energy will determine, early in the pipeline project planning process, if the proposed project triggers a duty to consult. If so, the Ministry of Energy will identify any Indigenous communities whose rights are potentially adversely affected by the proposed project and assess the extent of necessary consultation. Thereafter, the Ministry of Energy will delegate responsibility to conduct consultation activities with potentially affected Indigenous communities to the project proponents. The Guidelines (at section 3.3) set out the consultation activities that the proponent is expected to conduct. As part of their leave to construct application, project proponents will be expected to file anIndigenous Consultation Report documenting the consultation process and outcomes, including any concerns raised and how the concerns were addressed and/or accommodated. The OEB will assess the adequacy of the Crown’s consultation efforts as part of the leave to construct hearing process. Any potentially impacted Indigenous communities will be invited to participate in the hearing.

Presumably, the OEB took guidance from recent court decisions about delegating the duty to consult (discussed in an earlier post) in preparing the updated Guidelines. There may be more guidance on this topic after the Supreme Court of Canada (SCC) decides on the pending appeals in Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA (TGS) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc. Those appeals are scheduled to be heard by the SCC on November 30, 2016.

After the OEB issued the revised Guidelines, there was a news article focusing on how the revised Guidelines will impact the review of TransCanada’s Energy East project. It is not clear, though, that there will be any impact from these revised Guidelines on that project. Section 1.2 of the Guidelines explains that the document applies to pipelines that fall under the OEB’s leave to construct jurisdiction in Part VI of the Ontario Energy Board Act, 1998. The Guidelines specifically note that projects under federal jurisdiction that require approval from the National Energy Board do not require leave to construct from the OEB.