MAGAZINE BLOG

Another Quiet Revolution?

Posted on October 02, 2020

 

“CAEPLA believes property rights matter, and the way government is attacking landowners affected by energy projects is deceptive and dangerous.”

The Canadian Government’s hidden plan to open your property up to First Nations occupation under the guise of ‘energy regulation.’

By the CAEPLA Editorial Board

Back before COVID-19 took over, Canada’s news was dominated by stories about the occupation of railways, highways and pipelines by protesters, and about threats to the viability of Canada’s energy industry. Concerns continued to be voiced about Bill C-69, the legislation passed by the Trudeau Government to replace the National Energy Board (NEB) — the regulator responsible for federal energy projects like interprovincial and international oil and gas pipelines and electricity transmission lines — with a new Canadian Energy Regulator or CER.

What you might not have heard then was that buried among all the legislative changes in Bill C-69 that made the news was a change intended to prevent private landowners from objecting to the government’s plan to open privately-owned lands to Indigenous occupation.

The CER, like the NEB before it, has a mandate to protect the safety and security of persons, and to ensure the protection of property and the environment. The CER has specially designated inspection officers tasked with inspecting energy projects and ensuring that energy companies are operating in accordance with the law. Those inspectors are authorized by law to enter private property in order to inspect energy projects and ensure regulatory compliance. No search warrant is needed.

What is new in the Bill C-69 changes is that the CER’s designated inspectors can now bring outsiders with them onto your farms, ranches and yards whenever they say it’s “necessary” to help them.

Why this change? In the name of reconciliation, the Canadian government is now inviting “Indigenous Monitors” to accompany inspectors onto privately-owned lands — monitors who are lobbying to conduct archeological investigations and hold spiritual ceremonies.

Prior to Bill C-69, the NEB had already begun to bring Indigenous Monitors onto private properties, even though it was illegal at the time. CAEPLA challenged the government on this illegal practice. But rather than listen to the concerns of landowners, the government simply changed the law and gave the new CER the power to bring Indigenous Monitors onto private property. And landowners have no right to object.

Pipeline and energy landowners need to know what’s going on. Over these next seven pages, CAEPLA will tell you the story.

 

Government Expropriation: The Gift that Keeps on Taking

By the CAEPLA Editorial Board

How many times can Ottawa take the same land from you, and for how many different reasons?

Why my property? How did I get caught up in the federal government’s reconciliation agenda?

Simply put, if you have a federally regulated energy project on your lands, you’re now part of the government’s reconciliation agenda. Dig down a bit deeper, and the answer is expropriation.

A pipeline or energy company wanted your land for its project. The Canadian government gave the company the power to take your land — expropriation.

Whether or not you or a landowner before you signed an agreement with a company, it was the power and threat of expropriation that put the energy project on your land. You did not choose the project, the project chose you.

And the project comes with regulation. Energy companies must comply with federal laws and regulations, and the government has authority to enforce those laws and regulations through inspections and other activities.

The Canadian Energy Regulator (CER) has designated inspection officers tasked with ensuring both the safety and security of persons and the protection of property and the environment. On its face, that means making sure that pipelines are being built and operated in accordance with required standards. It means investigating leaks and ruptures, instances of digging too close to a pipe, and other dangerous occurrences.

The Canadian government is now using its authority to maintain the safety of pipelines and other energy projects to invite Indigenous Monitors onto private properties, without landowner permission, under the guise of environmental protection.

It’s expropriation all over again

The government says that the CER is responsible for supporting the government in delivering on its commitment to support reconciliation with Indigenous peoples, and claims that the specific expertise of Indigenous Monitors in traditional land use, sacred sites, historical knowledge and the diversity of Indigenous traditional and cultural worldviews improve the ability of the CER to inspect construction sites, integrity digs, contamination cleanups and other activities on your property.

CAEPLA is not anti-reconciliation. But CAEPLA believes that private property rights matter, and the way in which the federal government is attacking the property rights of landowners affected by energy projects is deceptive and dangerous.

By equating the presence of a federally regulated project with a right of Indigenous communities and other interested parties to gain access to private lands, the CER is signalling that your private property and privacy rights are undeserving of respect.

This is expropriation all over again, but this time the government’s not telling you.

 

Energy Regulation is Not Just About Energy Anymore

What is the IAMC and how does it affect you?

By the CAEPLA Editorial Board

The federal government has created a new type of organization called the Indigenous Advisory Monitoring Committee, or IAMC, intended to bring together Indigenous and senior federal representatives to provide advice to regulators, and to monitor the construction and operation of energy projects.

The government’s regulatory arm, the CER, is now sending IAMC Indigenous Monitors out with its designated inspection officers to inspect energy projects, including on private lands.

The CER says that inspections on private properties are necessary to hold CER-regulated companies to account to protect people and the environment. But the CER adds that inspections are also necessary “to protect Indigenous rights and interests” on privately-owned properties.

The IAMC program has been given tens of millions of dollars in funding. The initial five-year overall funding envelope for the Enbridge Line 3 Replacement Project (L3RP) is up to $21.6 million. The initial five-year envelope for the Trans Mountain Pipeline Expansion is up to $64.7 million. And more funding is possible after five years.

Well-financed First Nations activists looking for a free-for-all on your property…

The IAMC for L3RP has put forward a number of proposals to the government to increase access to privately-owned lands for Indigenous individuals and groups through the CER regulation of energy projects.

The IAMC has told the government that it wants additional opportunities to identify sites of interest along pipeline rights-of-way, to conduct traditional land use studies and for Elders and Knowledge Keepers to perform ceremonies. It wants the government to use legislation and regulatory tools to provide legal access to rights-of-way on privately-owned lands. The IAMC also wants to ensure that CER inspectors don’t only bring IAMC Indigenous Monitors onto private lands, but “representatives from all potentially impacted Nations.”

And the proposals go even further. The IAMC has requested that the government introduce regulations requiring easement agreements between energy companies and landowners to include rights of access for members of Indigenous Nations, forcing landowners either to agree explicitly to Indigenous access to their lands or face expropriation.

And all of this under the guise of regulating energy projects.

But what about your charter rights?

We’ve already explained why CAEPLA thinks the government is wrong to use its authority to regulate energy security and environmental safety to expand Indigenous access onto private property. Rather than coming out and telling Canadians what it wants to do, and opening public debate on its proposal, the government is misusing its regulatory powers to open up private lands to Indigenous activities unrelated to energy projects.

But the problem is more than just a government getting something in through the back door that it doesn’t want people to know about — the government’s misuse of its inspection powers is also an illegal violation of the charter rights of landowners.

Yes: Ottawa is violating the rights of private landowners to be free from unreasonable search and seizure, which is protected by Section 8 of the Charter of Rights and Freedoms.

CER inspectors may be authorized to enter your property to conduct inspections of energy projects, but when they bring outside parties onto your property who have their own private agendas that have nothing to do with the regulation of energy projects, the inspection becomes an unreasonable and illegal invasion of your private property.

CER inspectors don’t have to ask for your permission to bring outside parties onto your property. CER inspectors don’t have to tell you why they say they need to bring outside parties onto your property.

Through Bill C-69, the government has given the CER and its inspectors wide-open authority to bring anyone onto your property. And if you don’t like it, too bad — landowners are prohibited from denying entry to anyone who is accompanying a CER inspector. Landowners will face prosecution and fines and jail time on conviction if they challenge the entry onto their lands of anyone accompanying a CER inspector, and even if they refuse to assist the inspector.

CAEPLA believes this violates the charter rights of landowners, not to mention other legally protected privacy rights. Who knows what information the CER, Indigenous Monitors and other third parties will collect on your property, and what use they will make of that information?

And here you thought you only signed up for a pipeline.

 

Is Ottawa Encouraging Protests on Your Farm or Ranch?

By the CAEPLA Editorial Board

What’s the big deal? CAEPLA is not opposed to reconciliation with Indigenous Peoples in Canada, so why is CAEPLA opposed to the CER’s Indigenous Monitors?

Remember what was happening just prior to COVID?

Supply chains in Canada were already being disrupted by protests on railways and other infrastructure allegedly in support of Indigenous opposition to the Coastal GasLink Pipeline project in British Columbia.

What happens when protesters decide to use the IAMC and the CER to gain entry to private lands for their own purposes? Would you feel safe knowing that there is an open invitation to enter onto your property just because the government decided that an energy project should be built there?

The government’s lack of respect for landowners’ property rights and privacy rights will expose landowners to entry onto their lands by individuals and groups who are a risk to the health and safety of landowners and their families. The government’s push to protect Indigenous rights and interests on private properties threatens to take anti-energy industry protests from railways and highways onto Canadian farms and ranches.

This is short-sighted and irresponsible. The Canadian government needs to protect the safety, security and privacy of the landowners on whose lands it has allowed energy projects to be constructed.

It’s doing exactly the opposite.

 

Illegal CER inspections – We want to hear your stories

Had an integrity dig on your property lately?

Clean-up of historical contamination?

Did CER inspectors come to your property?

Who was with them?

Were you even notified?

CAEPLA is interested in hearing about your experiences with CER inspections and access to your properties by Indigenous Monitors and other non-CER invitees.

As we’ve explained through this article, the government of Canada is now using its authority to regulate energy projects as a tool of reconciliation with Indigenous peoples at the expense of private property rights and your right to privacy. CER inspectors have been empowered to bring Indigenous Monitors and any other outside party they want onto your property “to protect Indigenous rights and interests.” CAEPLA believes this is a violation of your charter-protected right to be free from unreasonable search and seizure and is a violation of the government’s duty to protect your privacy.

We would like to hear from you about how the CER’s new inspection powers have affected you and your property. CAEPLA is investigating the possibility of launching a charter challenge of the excessive investigation powers of the CER and the misuse of its authority on private lands for purposes which go far beyond the protection of people and the environment.

Landowners should not be forced to play host to the government’s reconciliation initiatives. Unless it’s an emergency, landowners should have a choice about who may enter their lands, when, and for what purposes.

You are prohibited by law from interfering with CER inspections; in fact, you’re obligated to assist upon request, and can be prosecuted if you refuse. But you don’t have to remain silent. Share your experiences and help us to let the government know that disrespecting and trampling upon private property rights is putting the safety and security of landowners at risk.

 

Oh, and another thing – Regulatory control over your land by “Indigenous Governing Bodies”

By the CAEPLA Editorial Board

We have explained how the Bill C-69 changes to Canada’s energy regulatory regime have created a new Indigenous monitoring program on privately-owned lands. In fact, Bill C-69 went much further than just authorizing access to lands for Indigenous Monitors — it gave the government the power to shift full regulatory control over your land to “Indigenous Governing Bodies.”

Under both the Impact Assessment Act and the Canadian Energy Regulator (“CER”) Act, the government will now be able to enter into agreements that authorize an “Indigenous Governing Body” to exercise powers and perform duties and functions in relation to environmental assessments, monitoring, compliance and enforcement on privately owned lands.

The next step is for government to pass regulations creating the new regime. According to Natural Resources Canada: “The proposed regulations are expected to clarify how Indigenous jurisdictions may be engaged in matters such as involvement in assessments, monitoring, compliance and enforcement, as part of the Government of Canada’s efforts to advance reconciliation with Indigenous Peoples. This regulatory initiative is in the early stages of development. Early engagement is currently anticipated to begin this Fall (2020), if appropriate given the circumstances relating to COVID-19.”

Depending on the regulations, “Indigenous Governing Bodies” may be given full regulatory authority over certain energy projects or over energy projects within specified geographical areas. There’s no limit to which lands may be affected — it’s up to the government of Canada to decide. The government will also decide on the scope of powers granted to “Indigenous Governing Bodies.” One possibility is full replacement of CER-designated inspection officers with Indigenous Monitors — individuals who will have the authority to bring anyone else they “need” onto your land with them to exercise their powers. An “Indigenous watchmen program,” as described in submissions to the House of Commons on Bill C-69 by one First Nation.

Big changes are coming to energy projects on your land, and they’re coming soon.