Working with Indigenous groups

We continue to build on more than 40 years of engagement with Indigenous groups. We are committed to building and maintaining long-term relationships with Indigenous groups based on respect, trust, open communication and recognition that many of our activities occur on traditional lands.

In Canada, the duty to consult always rests with the Crown, and is driven by the fiduciary obligations of the Crown to Indigenous people under treaty and under law. The duty arises whenever the Crown is making a decision that has a reasonable possibility of adversely affecting the exercise of Aboriginal and Treaty rights, as protected under s.35 of the Constitution Act, 1982. The nature of the duty to consult depends on the seriousness of the potential impact and the strength of the claim. It operates on a sliding scale, starting with providing simple notice of the activity (e.g., building a pipeline), and ending with “full consultation,” which includes meeting with Indigenous communities to discuss avoidance, mitigation, management or accommodation of potential adverse project effects.

The Crown cannot delegate the duty to consult to industry, but it can decide to delegate procedural aspects to fulfil its duty, as proponents are often in the best position to address Indigenous groups’ concerns. TC Energy calls carrying out this delegated duty “engagement,” to distinguish it from consultation.

In the U.S. and Mexico, the government has not delegated procedural aspects of consultation to project proponents. In the U.S., given the government-to-government relationship, the federal government handles all aspects of consultation, including determining which communities it will consult, defining consultation guidelines, and reaching agreements with communities when required. Project proponents are permitted to support the government or regulatory agency(s) activities with Indigenous groups, but accountability for consultation remains with the government.
In Mexico, consultation with Indigenous groups is the responsibility of the federal government, and is led by the Secretaría de Energía (SENER).

TC Energy identifies Indigenous groups through a combination of desktop research, regulators’ guidance, the company’s own operating experience, including past projects in the region, existing agreements with Indigenous groups, and an established network of contacts with Indigenous groups in the project area. TC Energy also considers the project’s proximity to Tribal reservations in the U.S., First Nation reserves in Canada, asserted traditional territory of Indigenous peoples and Indigenous settlements and communities. In addition, TC Energy engages with any Indigenous group that self-identifies as a potentially affected party to understand their interests, the nature of their concerns and to determine the most appropriate method of engagement going forward.

Canada, the U.S. and Mexico (the three countries within which TC Energy operates) have distinct laws pertaining to the protection of Indigenous rights and interests, as identified in Article 32.3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Where TC Energy’s business activities have the potential to affect local Indigenous groups, our practice is to engage with these groups to understand their issues and concerns, and ensure we take reasonable steps to mitigate those concerns. By taking this approach, we adhere to and often exceed the regulatory requirements of the respective jurisdictions.

Our regulatory process focuses on working with Indigenous groups across all business lines and jurisdictions. It is informed by our Indigenous Relations commitment statement, policy, strategy, guiding principles, as well as legal and regulatory landscapes, which continue to evolve. Regardless of what region we operate in, we aim to reach consent on our projects among Indigenous groups through early and ongoing engagement. We also strive to avoid and mitigate project-related effects on the exercise of Indigenous rights through environmental assessment and project planning.

TC Energy makes every effort to track the overall percentage of Indigenous employment; however, this information is based on self-identification. It is not a practice of TC Energy to require self-identification by any employee or contractor. TC Energy strives to build a workforce that is representative of the demographic profile in which we operate.

TC Energy’s Indigenous cultural awareness program is delivered in three modules comprising a region- specific historical overview, a synopsis of how the Indigenous Relations program is implemented within the company and a hands-on cultural experience which is offered regularly to all staff and in-house contractors in Canada.

These sessions cover the Indigenous Relations commitment statement, policy and engagement requirements, helping participants acquire the knowledge and skills needed to engage with Indigenous groups.

At TC Energy corporate offices in 2019, more than 230 employees and in-house contractors participated in Indigenous awareness training sessions specific to their country. In addition, more than 400 employees and in-house contractors participated in the many events and activities connected to Indigenous Awareness Week in Canada and Native American Heritage Month in the U.S.

In 2020, we enhanced our program by developing training for all employees and contractors, which provides education on the history and culture of Indigenous groups within Canada, the U.S. and Mexico.

We measure the effectiveness of our engagement approach by tracking, responding to, and striving to resolve all issues and concerns raised by Indigenous groups with whom we engage.

TC Energy implements the Indigenous engagement program to develop and strengthen relationships with interested communities, and to foster productive dialogue throughout asset lifecycle.

While TC Energy does not use agreements as a measure of success in Indigenous engagement, we do enter into agreements with Indigenous groups who may potentially be affected by our projects, such as capacity funding agreements and funding for Traditional Knowledge studies.

In 2019, we entered into a total of 87 agreements with the 46 Indigenous groups we were engaging on 16 projects we had under development in Canada.