Side-by-Side Comparison – Third Party Guidance on International Industry Good Practice on Oil Pipelines vs. Enbridge Practice on Oil Pipelines

Reference: 2017 Foley Hoag LLP Report “Good Practice for Managing the Social Impacts of Oil Pipelines in the United States” which considers provisions for good industry practice on Indigenous rights as identified in the following international frameworks:

  • the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”);
  • the International Finance Corporation’s (“IFC”) Performance Standards;
  • the Equator Principles;
  • the International Council on Mining and Minerals (“ICMM”) Ten Principles;
  • the United Nations Global Compact;
  • the Voluntary Principles on Security and Human Rights; and
  • the emerging international norm of Free, Prior and Informed Consent (“FPIC”).

This report was produced by Foley Hoag at the request of banks providing project finance to the Dakota Access Pipeline Project to provide guidance specific to the rapidly evolving U.S. context in relation to Indigenous rights and oil pipelines. It includes a review of the U.S. legal framework on community engagement, Tribal consultation and security, and compares that framework to International Industry Good Practice (“IIGP”) on oil pipelines. Although an in-depth discussion of the important legal, historical, and cultural differences between the U.S. and Canadian approaches to relations with Indigenous Peoples is beyond the scope of this report, Foley Hoag’s recommendations reflect widely-recognized international norms for responsible corporate behavior when the rights and interests of Indigenous Peoples are potentially impacted. For this reason we believe they provide a useful high-level benchmark against which to assess our own practices at Enbridge on Indigenous consultation, engagement, and security in Canada and the U.S. The following comparison table has been developed as a starting point for discussion and analysis of opportunities for performance improvement.

About Foley Hoag LLP
Foley Hoag LLP is a global law firm with a Corporate Social Responsibility (“CSR”) practice that helps multinational and sovereign clients adopt strategic policies to prevent and resolve conflicts. Attorneys in Foley Hoag’s CSR practice have local and global experience regarding both the legal requirements and corporate best practices related to engagement between companies and Indigenous communities, as well as extensive experience facilitating dialogue. Gare Smith, Chair of Foley Hoag’s CSR practice, has worked on human rights issues affecting Indigenous Peoples for over 35 years. His experience includes heading the U.S. delegation that helped draft the U.N. Declaration on the Rights of Indigenous Peoples. Amy Lehr, Counsel, formerly served as a legal advisor to the U.N. Special Representative on Business and Human Rights.

International Industry Good Practice (IIGP) on Oil Pipelines

Enbridge Practice on Oil Pipelines

A. Foley Hoag Recommendations on General Consultation and Community Engagement
Pipeline companies need to be proactive in engaging all potentially affected stakeholders through practices like the ones listed below.

(Please Note: It is important to understand that because Indigenous Peoples have distinct rights, they are more than stakeholders. Accordingly companies like Enbridge have distinct policies, management systems and practices for addressing Indigenous rights and building relationships with Indigenous Nations and groups. That said, in a large company some of the cross-cutting management systems developed to support stakeholder engagement can also help provide the foundation for improved performance on Indigenous engagement. See Part B in this Appendix for a discussion of how Foley Hoag’s recommendations on good international practice for engagement with Indigenous Peoples compare with current Enbridge practices. Part A (below) focuses more generally on good practice for consultation with stakeholders.)


Ensure appropriate staffing expertise and capacity: At an early stage of a project, before a company seeks a permit, it should hire staff with expertise in community engagement who can dedicate the necessary time to this activity. Companies should strive for continuity in staffing so that relationships and trust with local communities can be established.

Enbridge has adopted a comprehensive approach to managing the planning and execution of all of our engagement activities with local stakeholders, from the early project planning stage through completion of construction, and over the full lifecycle of our assets in Canada and the U.S. this includes the hiring and early deployment of individuals with on-the-ground experience and expertise. In addition to deploying frontline specialists proactively, the development and execution of our stakeholder engagement plans involves the participation of employees at various levels of seniority across multiple disciplines, business units and operating regions.


Conduct stakeholder mapping: A company should conduct stakeholder mapping on an ongoing basis and for specific projects to better understand the social landscape in which it operates.

We have developed an Integrated Management System for engagement that is scalable and incorporates standardized processes, procedures, tools and templates to enhance effectiveness and provide consistency across all of our projects and operations. It mandates early and ongoing mapping for the purpose of stakeholder engagement. Depending on the nature and location of the project, early-stage mapping enables us to identify opportunities for initiating in-depth discussions on the unique interests and concerns of individual communities as they may relate to the project.

We also use this mapping system to identify Indigenous Nations and groups that we believe we need to engage with when developing our projects. It is a tool that can continuously help inform and support the development and maintenance of long-term relationships across operating and decommissioning phases.


Create a stakeholder engagement plan: The company should develop stakeholder engagement plans that differentiate between interested stakeholders and stakeholders who are directly impacted by a project. The plan should also identify and focus on stakeholders who are most impacted by the project, or who are marginalized and may require special measures for effective engagement. Ideally, such engagement should begin before stakeholders express concerns about a project or problems are encountered. Such early and transparent engagement should continue throughout the project lifecycle, and may help to minimize the kinds of stakeholder concerns that lead to problems.

Enbridge develops and executes both project-specific engagement plans and broader Regional Engagement Plans that support engagement by our ongoing operations on a regional basis. Each of these plans is intended to include specific programs and/or actions involving stakeholder consultation and engagement. Activities include consultation to secure the involvement of local communities in issues related to engineering, heritage and environmental protection, construction, land management, procurement and the long-term operation of the pipeline.

Consultation and engagement plans are developed early in the project and are implemented throughout its lifecycle. They are intended to be proactive and to enable two-way interaction designed to obtain local input on Enbridge’s projects and ongoing activities, and to ensure the company both understands and acts on that input. These plans identify and prioritize groups, tailor engagement methods according to community needs and develop mitigation measures and processes to respond to specific issues and concerns. Where a project requires an environmental and social impact assessment by law, we additionally use the findings of those assessments to inform our stakeholder engagement plans.


Engage in information-sharing: A company should share information proactively about projects, and try to connect personally with potentially affected stakeholders as much as possible to share accurate information about the project. Affected community members should have an opportunity to share their concerns about the project as well.

Enbridge’s goal is to engage in information-sharing throughout the lifecycle of a project. Our stakeholder engagement plans are designed to: share information about the project, the company and the regulatory process; assist in the identification of the potential impacts of the project; obtain input; and identify appropriate measures to mitigate stakeholder issues and concerns.

Subject matter experts from a variety of disciplines and, in many instances senior company personnel, meet with stakeholders at our public engagement events and individual meetings. We also provide an opportunity for stakeholders to express their concerns about the project through other channels. We document those concerns and address them in project plans and mitigation steps. For example, Enbridge has made adjustments to the route of a proposed pipeline at the request of a landowner or based on stakeholder concerns.


Establish a grievance mechanism: A company should establish a grievance mechanism at an early stage of a project and ensure that it is staffed and monitored so that complaints are not only received but resolved in a timely fashion. Complaints should be tracked and timelines by which issues are likely to be resolved should be regularly communicated to complainants. To be effective, grievance mechanisms need to be culturally appropriate. An effective grievance mechanism should help prevent issues from escalating. If a grievance is significant and the parties cannot reach a resolution on their own, the company should consider bringing in a third party mediator.

Enbridge fully recognizes that some stakeholders may have concerns about our projects and operations, and we respect their desire to voice them. We welcome and encourage constructive two-way dialogue, and take all stakeholder concerns, issues and requests seriously.

Through our Regional Engagement Plans, we have created processes to document, track and respond to stakeholder concerns and questions or complaints in each of our operating regions. We offer stakeholders a variety of methods by which to engage with us, including toll-free telephone lines, in-person meetings and dedicated e-mail addresses. We respond to disputes and concerns through direct communication with the individuals and communities involved. Depending on the nature of the concern, relevant Enbridge subject matter experts both guide and participate in our response, with the goal of resolving differences in a timely manner. Depending on the nature of the issue involved, we are also prepared to escalate the response to include direct engagement or intervention by a senior executive with lead accountability. We track the status of disputes, concerns, issues and requests and integrate them into our project and regional engagement plans in order to ensure timely follow-up and to inform performance improvement.


Rely upon expropriation only as a last option, and provide fair compensation: Given recent pushback against the use of eminent domain for pipeline projects in the United States, companies should rely on expropriation as seldom as possible and only as a last resort. Moreover, companies should evaluate the compensation provided under law and consider whether it is adequate to improve or restore livelihoods. Companies should develop project timelines that allow for time to negotiate with landowners.

We make every effort to engage with private landowners along our project rights of way as early as possible. We work towards achieving mutually acceptable agreements with landowners directly affected by our projects and we consider several factors when assessing compensation for right of way agreements. These factors include, but are not limited to: fair market value of the lands, payment terms, loss of use, adverse effects, nuisance and inconvenience, and any damage to property.

Enbridge strives to come to a mutually acceptable agreement with landowners for activities that require land access. If land rights are not acquired upon approval of the project, Enbridge will consider utilizing established regulatory processes to bring resolution to those instances where acceptable resolutions with affected landowners have not been achieved, but this is a last resort and is rarely invoked.

As a result of our project-specific engagement plans, by late 2016, we had obtained agreements with 100 percent of the 1,087 private landowners along our Line 3 Replacement Program right of way in Canada, and the project was able to secure support from the Canadian Association of Energy and Pipeline Landowners Associations. In the U.S., Enbridge has similarly entered into agreements with all private landowners along the Line 3 Replacement Program right of way in North Dakota and Wisconsin. In Minnesota, we have reached agreement with 95 percent of private landowners along the proposed project right of way and engagement is ongoing.

We also obtained agreements with 100 percent of the 67 private landowners along our Line 10 Westover Segment Replacement Project’s right of way in Ontario, Canada.

B. Foley Hoag Recommendations on Engagement with Indigenous Peoples
To avoid the risk of project opposition, litigation, and delays, companies should incorporate International Industry Good Practice (IIGP) to develop positive relationships and partnerships. Many of the recommendations below focus on building trust. Companies engaging with Indigenous Peoples may struggle to develop trust due to the challenging history of relations between Indigenous Peoples and U.S. government and, in some instances, with companies. To overcome this, companies need to invest in the relationship and spend adequate time on consultation. This does not always fit neatly within normal project timelines. Yet a failure to spend adequate time can also lead to significant and costly operational delays. If adopted, the following recommendations would help companies better achieve IIGP in the United States.

(Please Note: Although the Foley Hoag recommendations below pertain to practices related to pipeline development and operation in the U.S. context, where relevant the Canadian context is also referenced in the section on Enbridge practices.)


Develop policy guidance: Companies should develop guidance that clarifies their position on Indigenous Peoples’ rights. Such rights are different from those of other stakeholders under international law, particularly collective procedural rights such as consultation and Free Prior and Informed Consent (FPIC). Similarly, tribes enjoy special rights under U.S. law, including collective rights that differentiate them from other groups. Company policies should reflect this. A policy helps provide internal clarity and, if the guidance is public, sets expectations for external parties. The guidance should be based on IIGP and should identify when companies plan to consult or seek FPIC from Indigenous Peoples for:

Enbridge engages on a regular basis with 200 Indigenous Nations and groups in Canada and 30 federally recognized Native American Tribes in the U.S. Our Indigenous Peoples Policy – which was updated in 2016 to include recognition of the importance of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – establishes the overarching goals and principles that guide our approach to Indigenous People and enhance our ability to develop relationships capable of supporting ongoing social, economic and environmental benefits. This policy is implemented through an integrated framework of management systems and accountabilities that is informed by UNDRIP – and the concept of FPIC – and aligns with regulatory frameworks and government commitments in Canada and the U.S.

Further information about the current legal and regulatory context in the U.S. and Canada on Indigenous rights can be found in section 3 in this Discussion Paper. Information on how Enbridge is implementing our Indigenous Peoples Policy can be found in section 5 of this Discussion Paper.


  • Potential impacts on tribal cultural heritage that are subject to protections in the IFC Performance Standards, whether or not consultation under National Environmental Policy Act (“NEPA”) or the National Historic Preservation Act (“NHPA”) is triggered.

Identification of possible impacts to the rights and interests of Indigenous Peoples occurs in the earliest phases of project planning and investment review at Enbridge.

We engage on cultural heritage identification and protection both inside and outside of regulatory frameworks. See Section B.7 in this comparison and section 7 in this Discussion Paper for more detailed information and examples.


  • Environmental impacts affecting Indian country or off-reservation rights (e.g. hunting, fishing, gathering), whether or not consultation under NEPA or the NHPA is triggered.

Identification and consideration of potential Indigenous impacts in early project planning is applied where proposed development requires consent, as well as lands where Indigenous Peoples have traditional use rights or sites of cultural importance and where development therefore requires consultation. For further information see section 7 in this Discussion Paper.

Further explanation and examples are also provided in Section B.8 of this comparison.


  • Projects on unrecognized traditional lands to which tribes still have a strong and active collective attachment.

Internal planning processes at Enbridge mandate consideration of the impacts of potential projects and/or operations that extends beyond lands under the legal control of local Tribes and includes lands and waters subject to traditional use and/or containing sites of cultural importance.


Conduct due diligence to understand tribal interests and rights: Companies should conduct due diligence to understand tribes’ historical grievances, including with particular federal agencies; tribal land claims and whether tribes continue to seek rights to traditional lands; off-reservation rights (e.g. fishing, hunting, or gathering); known cultural heritage sites; and the experiences other companies have had engaging with those tribes. This should help companies define more realistic timelines; approach tribes sensitively, plan projects with consideration of tribal rights and interests, and hire appropriate personnel. Companies should prioritize engagement with particular tribes if the activities will: (1) occur on reservations; (2) potentially affect (or be thought to affect) the environment on their reservations/trust lands; (3) affect off-reservation fishing, hunting or gathering rights; (4) affect their cultural heritage; or (5) be located on their traditional, unrecognized lands to which the Tribes maintain a collective attachment. The more of these factors are present, and the more severe the potential impact, the greater the priority that should be given to that tribe.

We have processes in place to identify the rights and interests of Indigenous Peoples and plan our engagement around these assessments. This includes our early-stage planning and investment review processes which incorporate specific protocols (see section 6 in this Discussion Paper), intended to facilitate our knowledge about Indigenous Nations and groups. These processes are then used to plan the timing and resource allocation for our engagement with specific Indigenous communities. Our engagement approach is also informed by evolving norms with respect to the rights of Indigenous Peoples.

Enbridge is committed to meaningful and respectful dialogue with Indigenous groups and communities and to engaging with them in ways that respond to their individual needs and priorities. We strive to resolve issues and reach agreements with Indigenous communities through direct engagement. Where not able to do so, we have engaged independent mediators that are mutually agreeable to both parties to reach resolution.


Consider appropriate timelines: Company timelines and budgets should take into account the time needed to consult or seek FPIC in accordance with international standards for potentially affected Indian tribes. Consultation may lengthen the front end of a project, but also should help ensure the project is able to proceed without significant social unrest.

Enbridge aims to plan and develop realistic timelines that account for Indigenous interests and rights that a project might affect based on due diligence. Depending on the nature and timeline of the project, we staff accordingly and adjust our resourcing as required to ensure that a community’s interests and concerns are addressed in a timely manner.

We try to ensure that our timelines are flexible enough to allow for enhanced consultation and engagement at the front end of a project. Our experience has been that this can provide a basis for greater efficiencies in both time and resources at the back end of a regulatory process. In other words, there is a good business case for it. 


Consult early: Companies should engage potentially affected Indian tribes early. Under the IFC Performance Standards, for a pipeline this engagement should occur during project planning so that there is still flexibility to adapt the project. Company guidelines should establish a well-defined stage-gated process that calls for and enables the company to consult earlier than regulations require in certain situations, thus facilitating tribal input into site selection and potential re-routing. This would enable consideration of tribal views in routing, environmental risk assessment, and mitigation plans. Ideally, companies would undertake this early engagement along with the permitting agency. Consultation should be ongoing throughout the project life cycle.

Enbridge engages as early as possible. In many cases, we consult prior to requirements stated by regulators in order to make early changes to project planning and design. These can include re-routing around culturally sensitive areas and/or adjusting engineering requirements, such as value placement, to address concerns.

By adopting a more proactive, consistent approach, we seek to build a solid foundation for a productive and mutually beneficial relationships.


Ensure appropriate staffing and expertise: Companies should hire staff with experience engaging with Indian tribes to conduct consultation for projects that might have impacts on tribes. Companies also sometimes hire tribal members to assist
with community liaison. Companies would also benefit from consulting with Indian tribes and/or anthropologists to design and support the stakeholder engagement process, particularly
if trust between the parties is low. Company representation at meetings with tribal leadership should be at a sufficiently senior level. Conducting such consultation should be written into relevant job descriptions and performance indicators. All employees and contractors engaging with tribes should receive cultural training.

Because Indigenous Peoples have distinct rights in both Canada and the U.S., Enbridge has special teams and resources dedicated to Indigenous consultation and engagement. Our Indigenous engagement teams are led by management personnel with extensive on-the-ground experience with Indigenous communities as well as experience in Indigenous business development and employment and training programs. We have learned that developing and retaining in-house expertise in this area is key to building and maintaining long-term relationships. We strive to ensure that employees and contractors engaging with Indigenous communities receive cultural awareness training.

Our Indigenous engagement is further supported by a broad range of Corporate, Major Projects and Operations staff that facilitate implementation of our Indigenous Engagement Program, including a centralized team within the broader Supply Chain Management function that focuses on expanding opportunities for socio-economic participation by Indigenous groups and is staffed by Indigenous business development specialists with the skill sets required to support the achievement of our goals for Indigenous procurement.

The intent of this integrated approach is to ensure that our employees bring the appropriate expertise, cultural awareness and experience to all of our interactions with Indigenous Peoples.

We also ensure that our engagement includes the direct participation of senior level staff with accountability for decision making and execution. Various levels of senior management can be involved at appropriate times in discussions with a community to reinforce our commitment to and the importance of our relationship with the community involved.

Our executive leadership, including our President & CEO, engages in meetings with Indigenous communities that may be impacted by our operations, such as our Line 3 Replacement Program in Canada. See section 5 in this Discussion Paper for further information on executive accountabilities for Enbridge’s performance on Indigenous issues.


Share adequate information: Share information with potentially affected tribes regarding: (1) Project impacts and mitigation. This would include information that is sufficient for them to understand the potential positive and negative impacts of the project, including cumulative effects, as well as planned mitigation steps. This may entail sharing more information than is mandated by law. Information sharing fosters a two-way dialogue in which tribes have an opportunity to share potential impacts and concerns with companies and have those taken into account in project planning; (2) The consultation or FPIC process. Given the complexity of agency consultation processes in the United States, and the number of consultation processes in which tribes are asked to participate, companies can play a vital role by sharing information to clarify the project, the government’s process, and the company’s process to help tribes engage more effectively. Companies should prioritize information sharing with tribes if the activities will affect the environment on their reservations/trust lands, their fishing, hunting or gathering rights; are located on traditional, unrecognized lands to which the Tribe still has a strong attachment; or will affect their cultural heritage. The more these factors are present, the greater the priority that should be accorded to the tribe. Companies should share as many documents as possible to help tribes understand project risk, and should redact them when they cannot be shared in full so that tribes have adequate information.

Enbridge provides information on environmental impacts and mitigation approaches to all communities in the vicinity of our operations. In some instances we consult beyond the project location, such as on our Line 3 Replacement Program, which has included engagement with more than 150 Indigenous groups in Canada, some from as far as 300 kilometers or more from the project right of way. In certain circumstances we also provide capacity support to ensure that Indigenous communities can effectively participate in regulatory processes.

Through mapping and consultation, we identify communities that have specific interests or deeper rights associated with the project area, and our consultation effort is modified to reflect the depth of their rights and potential impact on those rights and historical use. The use of cultural knowledge surveys also helps to further identify both historical and current uses of the traditional area in question.

In cases where an Indigenous Nation or group’s interests and concerns pertain to the cumulative effects of development, we provide information about the steps we have taken to minimize these effects, such as following an existing right of way. In cases where concerns and interests pertain to the environment, we share our environmental protection plans. When these steps do not resolve the concerns, we meet to discuss any concerns and additional actions that we could take to mitigate them.


Identify potential cultural heritage impacts together and develop mitigation plans: If a project will potentially impact cultural heritage, companies should work with the affected Tribe’s elders, cultural heritage experts, and/or archeologists to plan cultural heritage assessments, identify those sites, and develop mitigation plans. Many U.S. Tribes have their own archaeologists. If they are licensed and competent, companies should hire them. Otherwise, companies should incorporate tribal elders into archaeological and cultural surveys at an early stage before on-the-ground assessments begin.

Through ongoing consultation with Indigenous groups, Enbridge aims to understand how cultural and traditional interests relate to our projects and operations. In the event of any discovery of heritage or culturally sensitive sites or resources pre- or post-construction, at a minimum Enbridge will comply with all regulatory requirements and consult with the appropriate Indigenous representatives.

We also hire Indigenous archaeologists and archaeological consultants to conduct on-the-ground surveys. In some instances monitors from Indigenous communities participate in this field work. Depending on the size and significance of an archeological site, mitigation can involve marking sites of interest and heightened sensitivity when approaching the project area and potentially re-routing a proposed pipeline before construction can begin. For example, Enbridge secured an archaeologist at the onset of our Line 10 Westover Segment Replacement Project in Canada who participated in our consultation with three Indigenous communities to ensure that archeological input was included in our planning. Following extensive consultation, we re-routed the project around two archaeological sites within the corridor approved by the National Energy Board. We also hired approximately 15 First Nations archaeological monitors who were present throughout the archaeological work.

We may also provide funding for communities to conduct traditional knowledge and land use studies to identify their interests and specific areas of concern. These studies are then incorporated into project Environmental Protection Plans in a manner that protects the sensitive community intellectual and spiritual property but also provides guidance for mitigation to avoid these sites.

When the National Energy Board in Canada approved our Line 3 Replacement Program, it also identified 89 conditions that Enbridge needed to satisfy. One of those required Enbridge to file an Aboriginal Construction Monitoring Plan 30 days prior to the start of construction. Within the plan, Enbridge committed to hiring 27 Indigenous construction monitors for the project, three per each construction “spread,” and will continue to include cultural monitoring through completion of project construction. In addition, elements of the plan include: cultural awareness training for construction team members; tours for Elders and community members before, during and after construction on all nine construction spreads of the project; support for cultural ceremonies held by individual communities on the right of way; and supporting Indigenous pre-construction cultural assessment work in each spread.

The intent of pre-construction cultural assessments is to ensure that interested Indigenous communities have had an opportunity to review cultural assessment work and to tour potentially impacted areas along the right of way and assess it through an Indigenous lens. We support on-site Elder assessments of these areas and encourage communities to involve their own independent archeologists to ensure compatibility between their assessments and those completed by Enbridge contractors. Where concerns are identified, Enbridge works to develop mitigation strategies to avoid proximity to those sites, including through narrowing the right of way through construction, using fencing or matting, and in one case relocating a valve site so it was further away from an area of cultural significance to a concerned community.



Identify potential environmental risks together and include tribal input related to mitigation: Companies should provide potentially impacted tribes an opportunity to share their concerns about environmental risks and potentially integrate those concerns into EAs and other environmental assessment. Tribes might be aware of impacts on wildlife or fauna that a conventional EA might miss. Moreover, understanding tribal concerns, even if they ultimately prove unfounded, helps companies respond to those concerns and explain why those impacts would not arise. Companies should also provide an opportunity for tribes to suggest and comment on mitigation methodologies, and ensure that the tribes know whether their suggestions were incorporated and, if not, why not. Providing an opportunity for this feedback helps create a positive and respectful working relationship from the beginning, and may help avoid project opposition and protests. Companies may need to provide financial support to potentially impacted tribes so that they can hire experts to assist them and obtain scientifically accurate information about risks. When identifying which tribes might be impacted, companies should consider impacts of the project as a whole, as well as the risk of a spill, even if a spill is improbable.

Because we engage with individual Indigenous Nations and groups directly, we address their interests and concerns about environmental risks with the community involved.

We prioritize the protection and conservation of environmentally sensitive areas and areas of high biodiversity in all of our project planning, construction and operations. Our Enterprise Risk Management Framework and Safety Management System Framework include the tools and techniques that our business segments use to effectively manage all of their risks, including people, property and the environment.

Environmental assessments are completed for all of our Natural Gas and Liquid projects. The level of assessment is dependent on the activity being completed and the environmental setting. Where a project requires an environmental and social impact assessment, we provide full disclosure of the results of those assessments in the regulatory hearings and in publicly available documentation. Some of the agreements we have entered into with Indigenous communities on our Line 3 Replacement Program in Canada also include capacity funding to facilitate Indigenous review of the environmental and social impact assessment for the project. In Canada, we also engaged environmental monitors from Indigenous communities during environmental surveys conducted along the right-of-way on our Line 3 Replacement Program and our Line 10 Westover Segment Replacement Project. Results from Indigenous consultation and monitoring activities are incorporated into our ongoing plans for Environmental Protection that are subject to review by regulators.

We engage with Indigenous individuals and groups at a local level to provide awareness around the programs we have in place to maintain the safety, fitness and reliability of our systems, and to address concerns about the potential impacts of spills to water quality or quantity. In certain cases this can include engagement and training on emergency response with interested Indigenous groups and other public agencies, as well as investment in equipment.


Consider creating an impact-benefit agreement: These documents are a potential outcome of a consultation or a consent process. They identify the potential impacts of the project on a tribe and how mitigation will occur or the tribe will be compensated for those impacts. If the goal of the engagement process was to obtain FPIC, the document would include a formal statement of that agreement. Impact-benefit agreements can include components such as employment and contracting opportunities, environmental, social, and cultural impact management, compensation or disbursements to address impacts, governance arrangements, and other commitments such as continued access to land. Of particular importance for pipeline companies, impact-benefits agreements can address (see points below):

Impact benefit agreements are becoming more common in the resource extraction sector when business activities can have a highly disruptive impact localized to a specific geographic area, such as a mine or a dam.

Enbridge is drawing from this approach and adapting it to the fast-evolving linear infrastructure context across our North American operations. As explained above, in all cases we seek to minimize the impacts of construction and long-term maintenance of our pipelines through consultation and active collaboration with affected Indigenous communities. We strive for a mutually beneficial relationship by compensating those who possess rights to land for providing us with a right of way. Our engagement often also includes funding for traditional land use studies conducted by Indigenous communities because this enhances our understanding of traditional land use patterns, and improves our ability to integrate these findings into Environmental Protection Plans for our projects and operations on an ongoing basis. We also seek to create economic opportunities for Indigenous communities through direct employment and by funding capacity-building in Indigenous communities.

The most tangible examples of our success with this approach are the 55 agreements Enbridge has secured with the majority of the Indigenous Nations and groups in Canada along the route for our Line 3 Replacement Program. Similar efforts are underway to negotiate community-based agreements along rights of way for our pipelines in the U.S. These types of agreements vary by community depending on local needs and interests, but can include the following activities: support for the capacity required to engage on specific projects or activities; protocols for the application of traditional knowledge and land use information that can inform mitigation of potential impacts and risks; the creation of social and economic benefits through employment, training and contracting and other supply chain management initiatives; development of joint monitoring and assessment projects and/or support for other activities related to safety and environmental and cultural protection and emergency response; and support for community development priorities.

As of Q2 2018, our Line 3 Replacement Program in Canada and the U.S. had created a total of $87 million in economic opportunities for Indigenous Nations and groups through contracting, labour, business development and training. We are currently targeting the creation of a total of $250 million in Indigenous economic benefits to the end of the construction phase of this project. This represents an ambition of achieving close to a tenfold increase in Indigenous economic participation over our most recent project of comparable size and scope.


  • A tribal role in monitoring and managing impacts: Tribes play an ongoing role in monitoring cultural and environmental impacts, particularly in the context of certain projects in Canada and Australia. In many of these instances, a company places funds in escrow for the Tribe so that it can hire environmental and other experts as needed and produce its own reports or data. For some projects, the company and the Tribe have developed joint environmental and cultural oversight boards, with representation from or selected by each party. A government agency has also joined the oversight board in some cases. Enabling Tribes to play a role in monitoring can produce significant benefits. It creates trust in project-related data and mitigation approaches. It also provides an opportunity to develop and maintain a constructive relationship between the company and tribe.

In Canada, Enbridge was required to develop Aboriginal Construction Monitoring Plans as part of the regulatory conditions for approval for two recent projects. In addition, the federal government in Canada has established an Indigenous Advisory and Monitoring Committee (IAMC) for Enbridge’s Line 3 Replacement Program. This is a government-led initiative that has created a forum for representatives of Indigenous communities to monitor and provide advice to regulators. While not a member of this group, Enbridge participates as requested, providing project information and updates and cooperating with the work of the Committee. Further information on this plan is available in section 7 in this Discussion Paper.


  • Compensation for impacts: To the extent that a project is expected to potentially adversely impact a tribe’s lands; environment; fishing, hunting or gathering rights; livelihoods; or cultural heritage, companies should provide compensation. Companies should prioritize land-based compensation where feasible. Offering a tribe a revenue stream from the project is another way to build mutual interest in the project’s success and to offset impacts.
    These practices are used in Canada1 and Australia.

Where applicable, Enbridge enters into commercial agreements for easements with local Indigenous Nations. As linear infrastructure can traverse vast distances, our experience has been that the needs and interests of the Indigenous groups with which we engage are diverse. Hence our agreements and/or collaborations are customized based upon this diversity and to date have not included revenue sharing as is sometimes done by large-scale extraction industries. As previously discussed, the community-specific agreements and collaborations that Enbridge enters into can include commitments to the creation of a wide range of social, economic and environmental benefits, as well as support for programs or activities that advance cultural awareness and protection. Examples of the types of benefits involved are discussed elsewhere in this paper but can include support for capacity building, employment, procurement, business and skills development, safety and environmental management and monitoring, community development, cultural empowerment and access to low carbon energy. We have also engaged in discussions with interested Indigenous groups on agreements that could potentially involve an equity position in a specific project or operation.

C. Foley Hoag Recommendations on Security
The security situation facing U.S. and Canada pipeline proponents has changed significantly in recent years. Today, pipelines under construction are much more likely to be the subject of protests. Such unrest, in turn, can increase the risk of disproportionate use of force.


As a result of these changes, pipeline companies need to be more proactive in their approach to security. More information on the Foley Hoag Recommendations on Security is available here.

Enbridge has adopted a Security Policy that embraces the standards in the Voluntary Principles on Security and Human Rights. We are currently developing implementation guidelines.

1 In Canada, revenue sharing can occur in extractive industries and hydroelectric developments (large scale dams) and/or is done by governments.