Canada's pipeline regulator says it's taking a stand against systemic racism

Rueben George says he's not at all surprised thatin an era of racial reckoning,Canada's top pipeline regulator is signalling it wants to confront the problem ofsystemicracism and its sometimes fraught relationship with First Nations.

He and others in Indigenouscommunitieshave long accusedthe Canada Energy Regulator and other energy-sector review bodies ofprioritizingthe interests of the fossilfuel industry over those ofFirst Nations.

"Would they say those things if we didn't make them accountable? Probably not," said George, a member of theTsleil-WaututhFirst Nation in British Columbiaandmanager ofSacred Trust, an organization launched byTsleil-Waututhto fight the Trans Mountain pipeline expansion project.

"Because they are happily working within thatsystem that was created and feltwasn'tbroken."

The Canada Energy Regulator (CER) nowsays it's committed to systemic change within the federalbody, which reviews pipelines, cross-border power lines and some oil and gas activity in Canada's North.

The CER's senior leadership recently sat downfor a virtualinterview with CBCNews. Theysaid the regulator, formerly the National Energy Board, hasn't lived up to its obligations to First Nations, Mtis and Inuit.

"From the organization's perspective, I acknowledge that systemic racism exists. We as an organization need to acknowledge thatand to acknowledge our part in that," saidGitane De Silva, the regulator's CEO.

"The NEB has operated in a way that discounted Indigenous people, that saw them as an obstacle, that wasadversarial," added Cassie Doyle, the CER's chairperson.

Federal government grapples with systemicracism

Federal bodies such asthe RCMPhave struggled to define systemic racism within their institutions. Former senator Murray Sinclair, whochaired the Truth and Reconciliation Commission onresidential schools, has said that the existence ofsystemic racism in an organization doesn'tmean that everybody within that organization is racist.

"Systemic racism is when the system itself is based upon and founded upon racist beliefs and philosophies and thinking and has put in place policies and practices that literally force even the non-racists to act in a racist way," Sinclair told the Globe and Mail in June.

The CER says it is working torecruitand retaina more diverse workforce and is trainingstaff to betternavigate tricky situations such as pipeline crews stumblingupon Indigenous artifacts.

Some have said theCER has struggled in the past toreact appropriatelywhen engaging with Indigenous cultural ceremonies and prayer.

George said heremembers when members of the Tsleil-Waututh First Nation were given less than an hour to explain their nation's history and laws during an NEB hearing. One of the Tsleil-Waututhspeakers began singing a traditional song which turned into anawkward moment for the adjudicators, he said.

"One by one, all the Tsleil-Waututh people in the room, probably about 30 of us, stood up and joined him," George said. "[The NEB staff]didn't know what to do ... [whether]to stand up and to honour it. They didn't know what to do."

TheTrans Mountainturning point

The Trans Mountain pipeline hearings may have been a pivot pointfor the regulator and the Canadian government. In 2018, the Federal Court scolded bothoverthe pipeline's flawed approval process.

Although the ruling didn'taddress systemicracism, the court upbraided the Canadian government overits Crown consultations with First Nations.

"Some of the failures in the past on Crown consultation, failures, as dictated by the court I think that's what gave the government the sort of impetus to say, 'Hey, we've got todo something really different,'" Doyle said.

The judicialsmackdown partly prompted therenewal of Canada's environmental assessment legislationand,consequently, the transition of the National Energy Board into the Canada Energy Regulatorin 2019.

'Industry kind of captured the NEB'

The new regulator now has an explicit mandate to advance reconciliation with First Nations, Mtis and Inuit and to implement the United Nations Declaration on the Rights of Indigenous Peoples.

For the CER, it also means it's legally required to embed an Indigenous Advisory Committee high within its governance structure. The new committee's interim chair, Tyrone McNeil, said the committee iscovering "new ground."

"I see this as a really deep, active form of reconciliation," said McNeil, aSt:l member from British Columbia. "Industry kind of captured the NEB. That's clearly not allowed here."

The committee is less than a yearold andonly finalized its goals and mandate this month. While its advice isn't binding on the regulator or on project rulings, the CER promised in a news releasethat it "will have tangible impacts in the day-to-day operations."

The committee's recommendations, the CER said,also couldchange its approachto "compliance and oversight activities" and "the implementation of the United Nations Declaration on the Rights of Indigenous Peoples within the CER's mandate."

The Canadian Association of Petroleum Producers (CAPP)has applauded the new committee, butin a statement, itpointed tothe billions of dollars in energy-sectorcontracts that have gone to Indigenous-owned businesses.

"The oil and natural gas industry has made great progress in developing positive relationships with Indigenous communities and advancing opportunities for reconciliation, including business partnerships that generate economic, social and environmental benefits," said Shannon Joseph, vice-president of government relations and Indigenous affairs at CAPP.

A Vancouver based environmental lawyer said the CER and its arm's-lengthadjudicativepanelshould adoptwhenever possiblea collaborative approach with Indigenous nations and communities. Otherwise, said Eugene Kung, the CER's commitment to change will be empty.

"I certainly think there's a risk that it becomeshollow or performative," said Kung, a lawyer withWest Coast Environmental Law. "There's lots of space to have collaborative, co-operative decision-making, which is going to result in the end in more robust decisions, less conflict and less legal challenges down the road."