The OEB makes decisions about electricity and natural gas projects in the province. Where a project has a potential adverse impact on the constitutionally protected rights of Indigenous peoples, the obligation to ensure that Indigenous peoples have been consulted, and accommodated when required, may rest with the OEB.
The OEB is committed to ensuring that Indigenous peoples (First Nations, Inuit and Métis peoples) have an opportunity to bring their concerns forward and to participate.
This webpage provides information about the duty to consult on applications that come before the OEB. It also provides general information about participating in OEB proceedings.
The duty to consult and the OEB
The duty to consult
Indigenous peoples in Canada have both Aboriginal and treaty rights that are protected under section 35 of the Constitution Act, 1982.
The duty to consult seeks to protect Aboriginal and treaty rights while furthering reconciliation between Indigenous peoples and the Crown. The duty to consult requires that governments conduct consultation with Indigenous peoples about proposed government actions or decisions that might have a negative impact on Aboriginal or treaty rights. The goal is to listen to the views and concerns of affected Indigenous peoples and, when required, modify the proposed action or decision to avoid or minimize adverse impacts on those rights.
The Supreme Court of Canada has confirmed that decisions related to permits or other approvals issued by a regulatory tribunal (like the OEB) can trigger the duty to consult where the decision may adversely impact Aboriginal or treaty rights. In such cases, and where the OEB’s legislation permits, the OEB will consider the duty to consult through our hearing process.
The role of the OEB with respect to the duty to consult
At the OEB, the duty to consult most often arises when we review applications for approval to build new natural gas infrastructure such as a natural gas pipeline, which are called “leave to construct” applications.
Hydrocarbon/natural gas pipeline projects
To build a hydrocarbon (typically natural gas) pipeline within Ontario, the project proponent must first apply to the OEB for approval, under section 90 of the Ontario Energy Board Act, 1998. For these leave to construct applications, the OEB has created a process to ensure that all relevant information related to the duty to consult is placed on the public record of the proceeding, so that the OEB Commissioners hearing the application can consider this information when making their decision.
Here is a general overview:
- As set out in the OEB’s Environmental Guidelines for Hydrocarbon Pipelines and Facilities on Ontario, the project proponent must:
- before filing an application with the OEB, contact and actively engage with any Indigenous peoples whose Aboriginal or treaty rights may be adversely impacted by the project, and
- file an Indigenous Consultation Report with the OEB as part of their application that summarizes the consultation activities that were undertaken, and describes any rights-based concerns that were raised and what (if any) accommodations were proposed
- Notice of the OEB’s proceeding to consider the application is sent directly to all Indigenous communities that may be affected
- Any Indigenous peoples affected by the project are entitled to actively participate in the proceeding before the OEB and to raise any issues that they believe the OEB needs to consider
- All decisions of the OEB on these leave to construct applications include a section on Indigenous consultation. In that section, the OEB discusses how Indigenous concerns were addressed, and sets out our conclusion on whether the duty to consult has been adequately discharged.
Electricity transmission projects
For applications for approval to build electricity transmission lines under section 92 of the Ontario Energy Board Act, 1998, the OEB’s mandate is more limited and does not include the duty to consult. Instead, the duty to consult for these projects is led by the Ontario government as part of the Environmental Assessment process conducted by the Ministry of the Environment, Conservation and Parks.
Participation in OEB proceedings
We welcome active participation by Indigenous peoples in OEB hearings to ensure that their voices are heard and their concerns are considered. This includes concerns about any adverse impacts on their Aboriginal or treaty rights when within the OEB’s mandate, as well as other issues as may be within the scope of the hearing. To ensure that funding is not a barrier to participation in our hearings, the OEB can reimburse eligible participants for certain costs as set out in the OEB’s Practice Direction on Cost Awards.
Greater inclusivity is a goal at the OEB. To speak with us about participating in our processes, please contact the OEB’s Registrar: Registrar@oeb.ca.