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INDIGENOUS CONSULTATION AND ENGAGEMENT AT CANADA’S ENERGY AND UTILITY REGULATORS

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INDIGENOUS CONSULTATION AND ENGAGEMENT AT CANADA’S ENERGY AND UTILITY REGULATORS

CAMPUT is the Association of Canada’s provincial, territorial and federal energy and utility regulators.  CAMPUT’s purpose is to improve energy and utility regulations in Canada and to educate and train our members.  We are highlighting the work of two of our members, the Canadian Nuclear Safety Commission and the Canada Energy Regulator, in the areas of Indigenous consultation and engagement.

The Canadian Nuclear Safety Commission (CNSC) has a broad mandate, including to protect health, safety and security, and the environment, and to disseminate objective scientific, technical and regulatory information to the public, including Indigenous groups.   The CNSC is also an agent of the Crown with the responsibility of ensuring the Duty to Consult is met before making decisions.  The CNSC has explored various means to ensure that Indigenous groups’ voices are heard and integrated into Commission decision-making. The CNSC has also committed to developing on-going, respectful relationships that allow open dialogue in the spirit of reconciliation and trust building.

First, the CNSC focused in-house and put into place policies, practices and processes with an overarching regulatory framework and management system to confirm that CNSC decisions uphold the Honor of the Crown. This included a Regulatory Document (REGDOC 3.2.2, 2016) that sets out the Commission expectations on how proponents play a significant role in working with Indigenous groups to address concerns and mitigate impacts and / or treaty rights, early in design and project proposal stages.

The CNSC also has a dedicated team with expertise in Indigenous consultation and engagement that conducts ongoing engagement with Indigenous groups with interests in nuclear facilities. The long-term goal is to help build relationships and trust and help CNSC staff learn more about the history, rights, interests, and culture of the Indigenous groups. The CNSC continues to work with Indigenous groups to ensure they are provided the opportunity to present their views and give oral presentations at Commission hearings.

To support this participation, the CNSC has put in place a Participant Funding Program that in part, has helped Indigenous groups hire consultants to review technical scientific reports, fund Indigenous Knowledge studies, cover community meeting costs, pay Honoraria for elders, and costs for travel and preparations for hearings. Further, Commission hearings have taken place in communities near facilities to allow easier access by Indigenous groups, and teleconferencing, web access, live streaming and simultaneous translation in Indigenous languages has also been used.

The CNSC acknowledges the importance of working with and integrating Indigenous Knowledge alongside scientific and regulatory information in its assessments and regulatory processes, where appropriate and where authorized by Indigenous communities. Indigenous ways of knowing and cultural context enhance the CNSC’s understanding of potential impacts of projects and strengthens project reviews and regulatory oversight.

The CNSC also runs its own Independent Environmental Monitoring Program (IEMP) that seeks Indigenous participation in taking samples from public areas around nuclear facilities and measuring and analyzing the amount of radiological and hazardous substances in the samples. Following discussions with many Indigenous groups, it was recognized that they could play a key role in identifying country foods and traditional harvest areas and participate as part of the IEMP. Getting meaningful monitoring results to Indigenous communities is a key priority for the CNSC.

The Canada Energy Regulator (CER) welcomes change. In August 2019 we transitioned from the National Energy Board to the Canada Energy Regulator. The CER has been given new legislation and is focused on improvement. Reconciliation with Indigenous Peoples is a pillar of our renewal.

Our legislation directs us to find meaningful ways to engage with Indigenous Peoples. We embrace our new mandate and have woven specific deliverables on reconciliation into every aspect of our work.

Our vision: to transform the way we work with Indigenous Peoples, recognizing their unique cultures, knowledge and histories; and endeavor to reflect a renewed Nation- to-Nation relationship based on the recognition of rights, respect, cooperation and partnership.

We recognize reconciliation is an ongoing process that occurs in the context of evolving Indigenous-Crown relationships. Sitting around the table with Indigenous communities, we are working to find new ways to co-manage regulatory oversight. We recognize the inseparable connection Indigenous Peoples have with the land and the water, and we will work collaboratively to protect them. We are also ensuring we equip the communities with the right skills and support to make the changes we envision a reality.

Indigenous Advisory and Monitoring Committees (IAMC) bring together Indigenous and federal leaders to provide advice to regulators and to monitor the Trans Mountain Expansion and Line pipelines. Members share the goals of safety and protection of environmental and Indigenous interests in the lands and water. Indigenous participation does not equal support or opposition for a project, allowing for better information-sharing within the group. This initiative represents a foundational change in the way the CER and the Federal government work with Indigenous Peoples. It aims to develop an enduring and meaningful relationship for the entire lifecycle of the project. We believe our work with the IAMCs can lead the way on co- management of regulatory oversight activities and has the potential to be applied across the rest of Canada’s energy system.

Here are some other ways we are changing how we work with Indigenous Peoples:

  • We are meeting with Indigenous communities earlier on who may be impacted by projects we regulate to better understand their concerns and share how the CER holds companies accountable for the protection of Indigenous rights and interests.
  • We are adapting our hearing processes to allow for different paths of Indigenous participation. This includes sharing Indigenous Knowledge, allowing for ceremonies, selecting specific locations for the hearing that are convenient to Indigenous participants or elders, and allowing for remote participation if travel is not possible.
  • We are developing a National Indigenous Monitoring Policy so that all CER-regulated infrastructure projects can benefit from Indigenous Knowledge when they are being build and operated.
  • We are training our employees to understand more about Indigenous history, culture and contemporary issues facing Indigenous Peoples in Canada. This training ensures that consideration of Indigenous rights and interests and becomes embedded in our way of working.

Background.  The Canadian Energy Compendium is an annual Energy Council of Canada initiative which provides opportunity for cross-sectoral collaboration on a topic of shared interest across the Canadian energy sector, produced with the support of Canada’s national energy associations and Energy Council of Canada’s members. The stories contributed to the 2019 edition, Indigenous Energy Across Canada, highlight current conversations celebrating Canada’s dynamic energy sector and encouraging its continuous improvement.

Thanks to Todayville for helping us bring our members’ stories of collaboration and innovation to the public.

Click to read a foreward from JP Gladu, Chief Development and Relations Officer, Steel River Group; Former President and CEO, Canadian Council for Aboriginal Business.

JP Gladu, Chief Development and Relations Officer, Steel
River Group; Former President & CEO, Canadian Council for Aboriginal Business

 

Jacob Irving, President of Energy Council of Canada

The Canadian Energy Compendium is an annual initiative by the Energy Council of Canada to provide an opportunity for cross-sectoral collaboration and discussion on current topics in Canada’s energy sector.  The 2020 Canadian Energy Compendium: Innovations in Energy Efficiency is due to be released November 2020.

Click to read comments about this series from Jacob Irving, President of the Energy Council of Canada.

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The Energy Council of Canada brings together a diverse body of members, including voices from all energy industries, associations, and levels of government within Canada. We foster dialogue, strategic thinking, collaboration, and action by bringing together senior energy executives from all industries in the public and private sectors to address national, continental, and international energy issues.

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Estonia’s solution to Canada’s stagnating economic growth

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From the Fraser Institute

By Callum MacLeod and Jake Fuss

The only taxes corporations face are on profits they distribute to shareholders. This allows the profits of Estonian firms to be reinvested tax-free permitting higher returns for entrepreneurs.

new study found that the current decline in living standards is one of the worst in Canada’s recent history. While the economy has grown, it hasn’t kept pace with Canada’s surging population, which means gross domestic product (GDP) per person is on a downward trajectory. Carolyn Rogers, senior deputy governor of the Bank of Canada, points to Canada’s productivity crisis as one of the primary reasons for this stagnation.

Productivity is a key economic indicator that measures how much output workers produce per hour of work. Rising productivity is associated with higher wages and greater standards of living, but growth in Canadian productivity has been sluggish: from 2002 to 2022 American productivity grew 160 per cent faster than Canadian productivity.

While Canada’s productivity issues are multifaceted, Rogers pointed to several sources of the problem in a recent speech. Primarily, she highlighted strong business investment as an imperative to productivity growth, and an area in which Canada has continually fallen short. There is no silver bullet to revive faltering investment, but tax reform would be a good start. Taxes can have a significant effect on business incentives and investment, but Canada’s tax system has largely stood in the way of economic progress.

With recent hikes in the capital gains tax rate and sky-high compliance costs, Canada’s taxes continue to hinder its growth. Canada’s primary competitor is the United States, which has considerably lower tax rates. Canada’s rates on personal income and businesses are similarly uncompetitive when compared to other advanced economies around the globe. Uncompetitive taxes in Canada prompt investment, businesses, and workers to relocate to jurisdictions with lower taxes.

The country of Estonia offers one of the best models for tax reform. The small Baltic state has a unique tax system that puts it at the top of the Tax Foundation’s tax competitiveness index. Estonia has lower effective tax rates than Canada—so it doesn’t discourage work the way Canada does—but more interestingly, its business tax model doesn’t punish investment the way Canada’s does.

Their business tax system is a distributed profits tax system, meaning that the only taxes corporations face are on profits they distribute to shareholders. This allows the profits of Estonian firms to be reinvested tax-free permitting higher returns for entrepreneurs.

The demand for investment is especially strong for capital-intensive companies such as information, communications, and technology (ICT) enterprises, which are some of the most productive in today’s economy. A Bank of Canada report highlighted the lack of ICT investment as a major contributor to Canada’s sluggish growth in the 21st century.

While investment is important, another ingredient to economic growth is entrepreneurship. Estonia’s tax system ensures entrepreneurs are rewarded for success and the result is that  Estonians start significantly more businesses than Canadians. In 2023, for every 1,000 people, Estonia had 17.8 business startups, while Canada had only 4.9. This trend is even worse for ICT companies, Estonians start 45 times more ICT businesses than Canadians on a per capita basis.

The Global Entrepreneurship Monitor’s (GEM) 2023/24 report on entrepreneurship confirms that a large part of this difference comes from government policy and taxation. Canada ranked below Estonia on all 13 metrics of the Entrepreneurial Framework. Notably, Estonia scored above Canada when taxes, bureaucracy, burdens and regulation were measured.

While there’s no easy solution to Canada’s productivity crisis, a better tax regime wouldn’t penalize investment and entrepreneurship as much as our current system does. This would allow Canadians to be more productive, ultimately improving living standards. Estonia’s business tax system is a good example of how to promote economic growth. Examples of successful tax structures, such as Estonia’s, should prompt a conversation about how Canadian governments could improve economic outcomes for citizens.

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Federal government seems committed to killing investment in Canada

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From the Fraser Institute

By Kenneth P. Green

Business investment in the extraction sector (again, excluding residential structures and adjusted for inflation) has declined from $101.9 billion to $49.7 billion, a reduction of 51.2 per cent

Canada has a business investment problem, and it’s serious. Total business investment (inflation-adjusted, excluding residential construction) declined by 7.3 per cent between 2014 and 2022. The decline in business investment in the extractive sector (mining, quarrying, oil and gas) is even more pronounced.

During that period, business investment in the extraction sector (again, excluding residential structures and adjusted for inflation) has declined from $101.9 billion to $49.7 billion, a reduction of 51.2 per cent. In fact, from 2014 to 2022, declines in the extraction sector are larger than the total decline in overall non-residential business investment.

That’s very bad. Now why is this happening?

One factor is the heavy regulatory burden imposed on Canadian business, particularly in the extraction sector. How do we know that proliferating regulations, and concerns over regulatory uncertainty, deter investment in the mining, quarrying and oil and gas sectors? Because senior executives in these industries tell us virtually every year in a survey, which helps us understand the investment attractiveness of jurisdictions across Canada.

And Canada has seen an onslaught of investment-repelling regulations over the past decade, particularly in the oil and gas sector. For example, the Trudeau government in 2019 gave us Bill C-69, also known as the “no new pipelines” bill, which amended and introduced federal acts to overhaul the governmental review process for approving major infrastructure projects. The changes were heavily criticized for prolonging the already lengthy approval process, increasing uncertainty, and further politicizing the process.

In 2019, Ottawa also gave us Bill C-48, the “no tankers” bill, which changed regulations for vessels transporting oil to and from ports on British Columbia’s northern coast, effectively banning such shipments and thus limiting the ability of Canadian firms to export. More recently, the government has introduced a hard cap on greenhouse gas emissions coming from the oil and gas sector, and new fuel regulations that will drive up fuel costs.

And last year, with limited consultation with industry or the provinces, the Trudeau government announced major new regulations for methane emissions in the oil and gas sector, which will almost inevitably raise costs and curtail production.

Clearly, Canada badly needs regulatory reform to stem the flood of ever more onerous new regulations on our businesses, to trim back gratuitous regulations from previous generations of regulators, and lower the regulatory burden that has Canada’s economy labouring.

One approach to regulatory reform could be to impose “regulatory cap and trade” on regulators. This approach would establish a declining cap on the number of regulations that government can promulgate each year, with a requirement that new regulations be “traded” for existing regulations that impose similar economic burdens on the regulated community. Regulatory cap-and-trade of this sort showed success at paring regulations in a 2001 regulatory reform effort in B.C.

The urgency of regulatory reform in Canada can only be heightened by the recent United States Supreme Court decision to overturn what was called “Chevron Deference,” which gave regulators powers to regulate well beyond the express intent of Congressional legislation. Removing Chevron Deterrence will likely send a lot of U.S. regulations back to the drawing board, as lawsuits pour in challenging their legitimacy. This will impose regulatory reform in and of itself, and will likely make the U.S. regulatory system even more competitive than Canada.

If policymakers want to make Canada more competitive and unshackle our economy, they must cut the red tape, and quickly.

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