Resource Companies Grapple With Supreme Court Decisions on Duty to Consult Indigenous Communities

Indigenous rights, duty to consult, zack embree

The duty to consult Indigenous communities — what it means and how it should be properly executed — is now a key issue for pipeline and petroleum companies hoping to proceed with proposed mega projects.

This was more than evident earlier this week in downtown Calgary when about 250 people gathered for lunch in The Palliser Hotel eager to hear a panel of experts discuss two recent Supreme Court of Canada decisions and their impact on resource project applications.

The two unanimous judgements rendered at the end of July both involved the responsibility of the National Energy Board (NEB) to conduct thorough consultations on behalf of The Crown with Indigenous communities impacted by resource development.

Clyde River, Chippewa of the Thames Cases Show Importance of Consultation

One decision, Clyde River, involved an authorization granted to Petroleum Geo-Services Inc. (a Norwegian-based company) to conduct marine seismic testing in Baffin Bay and Davis Strait. The Clyde River Inuit community asserted that the noisy underwater explosions would impact its treaty rights to harvest marine mammals such as seals, narwhals, whales and fish.

The NEB gave the go-ahead anyway. But the Supreme Court found that the NEB had only considered environmental effects and had given no consideration to the source (Treaty) of the Inuit community’s rights to harvest marine mammals, nor to the impact of the proposed activities on those rights.

There were no oral hearings, and there was no participant funding. While these procedural safeguards are not always necessary, their absence in this case significantly impaired the quality of consultation,” the court found.

The second Supreme Court decision dealt with the Chippewa of The Thames First Nation in southwestern Ontario and Enbridge’s Line 9 oil pipeline reversal. In this case, the Supreme Court found that the NEB had conducted thorough consultations with the community. It also affirmed the NEB’s capacity and expertise to assess thorough consultation and accommodation to Indigenous communities.

The Supreme Court decisions not only reaffirmed the NEB’s duty to consult, they elaborated on what thorough consultation looks like, said Dwight Newman, Canada Research Chair for Indigenous Rights in Constitutional and International law at the University of Saskatchewan.

No one benefits — not project proponents, not Indigenous peoples, and not non-Indigenous members of affected communities — when projects are prematurely approved only to be subject to litigation,” he said during the panel organized by the University of Calgary’s School of Public Policy.

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Litigation Not the Answer’

Another member of the panel, Norine Saddleback, who hails from Maskwacis in central Alberta and is a member of the National Indigenous Monitoring Committee for the Kinder Morgan pipeline, said she much prefers thorough consultation that results in impact agreements to paying scores of lawyers to go to court.

We are trying to build bridges with people who have been in our back yard for a long time,” she said. Several First Nations in the area where she lives have developed oil resources on their territory in partnership with petroleum companies.

As Indigenous people our job is to provide balance. To protect the environment and our Indigenous use of the environment,” Saddleback said. “That can be done if Indigenous people are taken seriously by proponents.”

Gerry Chipeur, a Calgary lawyer who has represented the interests of both project proponents and Indigenous communities, said relying on the courts to settle development disputes is risky business.

Litigation is not the answer,” he said.  

Panel participants agreed that the two recent Supreme Court decisions were an important indicator of  the future role of the NEB which is currently undergoing a modernization review initiated by the federal government.

The review’s mandate includes Indigenous engagement and public participation.

Regulators May Be Vehicles for Consultation

Gaetan Caron, former chair of the National Energy Board, said the Supreme Court decisions affirm that the regulatory body is a vehicle through which The Crown can carry out its responsibilities to Indigenous people.

The Crown has to consult and accommodate so why not use the regulatory body to carry out those responsibilities?” he said.

Both the court cases discussed during the Calgary panel involved instances where the NEB was authorized to make the final decision on a project.

Feds Took a Different Tack With Kinder Morgan Trans Mountain Consultation

These cases differ from the legal challenge of the Kinder Morgan Trans Mountain pipeline approval, where the NEB merely made a recommendation to federal cabinet and cabinet made the final decision.

Nigel Bankes, an expert in Indigenous and resource law at the University of Calgary was not on the panel, but in a recent law faculty blog he discussed the implications of the two Supreme Court decisions on legal proceedings challenging the federal government’s approval of the Trans Mountain pipeline.

Bankes contends that in the Trans Mountain case, the federal government did not rely on just the NEB process to discharge its responsibility to consult and accommodate. Having learned from mistakes during the Northern Gateway project proposal, the federal government took supplementary steps to improve its consultation and accommodation practices.

The federal Crown undertook further consultation through the Major Projects Management Office and, as well, appointed the Trans Mountain Pipeline Expansion Project Ministerial Panel to engage potentially affected communities close to the proposed pipeline and shipping corridors.

In addition, the federal Crown itself conducted more intense consultation and accommodation activities in conjunction with the provincial Crown,” Bankes wrote.

Bankes also contends that the Chippewa of the Thames First Nation decision is confirmation that consultation and accommodation with respect to Trans Mountain will focus on the particular application and not on past decisions with respect to that same pipeline.

While the “new project” that was before the NEB in Chippewa of the Thames was small, the same cannot be said of Trans Mountain since it involves a very significant expansion in both pipeline capacity and tanker shipments, Bankes wrote.

The B.C. government recently announced it has hired renowned lawyer Thomas Berger and will seek intervener status in the court challenges, expected to be heard this fall.

Image: Idle No More, 2012. Photo: Zack Embree