The Ontario government is considering how to integrate its duty to consult with Indigenous peoples into planned regulations to fast-track approvals of specified natural gas pipelines. Proposals aligned with pending amendments to the Ontario Energy Board Act have been posted on the provincial regulatory registry for public feedback until May 17.
Earlier this winter, the Ontario government tabled Bill 165, legislation addressing the Ontario Energy Board’s (OEB) decision-making processes and containing new directives for granting approval to natural gas pipeline projects that are deemed to be a priority. The proposed regulations relate to the OEB’s role and obligations when the government determines it will not be necessary for the project proponent to obtain what’s known as a “leave to construct” (LTC) through a full OEB hearing.
It’s proposed that an exemption would generally apply for projects that are
- no more than 20 kilometres in length;
- have a pipe diameter less than 12 inches and a pipe pressure of less than 2,000 kilopascals; and
- are projected to cost no more than $10 million to construct.
In such cases, the OEB would be tasked with ensuring the government had fulfilled its duty to consult with Indigenous peoples, in accordance with Section 35 of the Canadian Constitution Act, before incontestably granting leave to construct.
“Such exemptions would support the government-wide efforts to address timelines related to transit project construction and the need for additional housing stock across the province,” states the explanatory summary of the proposed regulations. “Any exemption from LTC would still require all project proponents to obtain all relevant permits and approvals, and participate in all other related processes to ensure environmental, technical and safety requirements from Ontario ministries, authorities and municipalities are met before proceeding with construction.”
In addition to stating the technical parameters for exempted pipeline projects, the Ontario government is also considering other potential steps related to Indigenous consultation that may be included in the forthcoming regulations. That includes potentially requiring project proponents to file an application for exemption to the OEB, which would also entail supplying information about any consultation undertaken with affected Indigenous peoples, issued raised through that process and efforts to address them.
As part of a potential exemption application process, the OEB would also notify “Indigenous communities that have been identified for rights-based consultation” and they would have an opportunity to file “a statement of concern” about the project. The proposed regulation also states: “Only concerns related to Section 35 rights shall be considered”.
If such a concern is raised, the OEB may hold a hearing to consider the project proponent’s exemption application. That hearing would focus only on whether the duty to consult had adequately occurred and only affected Indigenous communities could apply for intervenor status.
The government is now inviting public input, while also reiterating that this version of the regulations may not be enacted. “The information provided in this posting is for informational and consultation purposes only and may not represent the final decisions of government,” the explanatory summary states.
