Ontario's First Nations leaders are demanding the National Energy Board halt its review of TransCanada Corp.'s Energy East project until they can be properly consulted.
In a letter to Natural Resources Minister Greg Rickford, Ontario regional chief Stan Beardy said First Nations have "grave concern" about the NEB process, saying the board has been inaccessible and unwilling to share information with them.
"The process is unable to discharge the duty to consult and accommodate, lacks transparency in decision making, and in contrary to the principle of free, prior and informed consent," Mr. Beardy wrote in a letter released Thursday.
Aboriginal leaders have often turned to the courts when they believe they have not been properly consulted, and Mr. Beardy's letter raises the odds that the Energy East proposal would face a legal challenge if approved by Ottawa.
TransCanada filed an application last fall for the energy board to approve the $12-billion pipeline that would carry 1.1 million barrels a day of western crude to eastern refineries and export terminals. The company would convert portions of its natural gas mainline from Alberta to Quebec to carry crude, and build new pipe from the Ontario-Quebec border to the terminus at Saint John.
Both the company and the board have been consulting with First Nations, but Mr. Beardy said that effort has been insufficient. In an interview, the regional chief for Ontario said First Nations need to ensure the conversion of the pipeline from gas to oil does not threaten their waterways or land, and that they benefit from the project.
His organization wants the NEB to halt its review process until proper consultations can be held, including a series of in-person sessions by board staff and TransCanada for communities along the route, and funding to those communities to ensure they have the capacity to assess the proposal.
The Supreme Court of Canada has strengthened the hand of First Nations in resource development by ruling they must be adequately consulted and accommodated on projects that affect their traditional lands. But court has not endorsed aboriginal leaders' claim that they must give their consent before such projects can proceed.
Ontario Energy Minister Bob Chiarelli said this week that the province believes First Nations "are not being adequately consulted" on Energy East. Ontario will intervene at the National Energy Board on the project and has listed a number of "principles" that will determine whether it will support TransCanada's plan – including proper First Nations consultation.
A spokesman for Mr. Rickford said Thursday Ottawa has enhanced funding for those who wish to participate in the NEB process, and that the board has published information on how to participate and how to access funding.
In response to Mr. Chiarelli's complaint, TransCanada chief executive Russ Girling said the company has consulted extensively with the 200 First Nations communities along the route.
"There are a lot of pent-up issues with the aboriginal communities that are totally unrelated to our pipeline but as the pipeline advances, it's a venue in which to vent your other frustrations," he told The Globe and Mail editorial board this week. He said the company has provided funding for First Nations intervenors but is in the early stages of negotiations with them and is confident it will win support.
NEB spokeswoman Katherine Murphy said the board is just getting started with its review, but has been consulting communities in preparation for the hearing process. "We have done extensive aboriginal engagement on Energy East along the pipeline route," she said.