New jurisprudence on the duty to consult

2017-07-26

in Canada, Economics, Law, Politics, The environment

From CBC News: Supreme Court quashes seismic testing in Nunavut, but gives green light to Enbridge pipeline

I think the Supreme Court is erring in maintaining the view that Canada’s Indigenous communities should not have the right to reject proposed resource development projects that affect their territories.

The land that supposedly belongs to the Crown and to private citizens was dubiously acquired by agreements concluded under duress, and never implemented in good faith by government or private industry. Denying Indigenous communities the ability to reject dangerous projects in the lands they retain control over is an unacceptable imposition by any other part of Canadian society. If resource extraction sites or export corridors are to be partly situated in Indigenous territory, it should only take place in the context of a voluntary partnership between those with an interest in the health and integrity of the land and those who are proposing dams, bitumen sands mines, wind farms, concentrating solar and solar photovoltaic sites, high-voltage power lines, nuclear power plants, etc. It’s to be expected that ownership and decision-making of such projects should be a shared undertaking between governments.

Canada’s history of bad faith and exploitation means they are the party to such agreements that ought to be viewed with suspicion and considered on parole. The heart of Canada’s grim legacy of settler-Indigenous relations lies in forcing people to accept the ways we want them to live. Any plausible pathway to reconciliation must be based on consent.

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{ 4 comments… read them below or add one }

alena July 27, 2017 at 9:58 am

I was so happy to hear of the Nunavut decision as it admits that indigenous people have a right to reject exploration that is harmful to their community/environment. The Enbridge pipeline is a big mistake, but Trudeau was always in favor of it and it is backed by money.

. July 27, 2017 at 5:59 pm

There was some good news for industry in a companion Supreme Court decision that suggested the courts do not equate the constitutional duty to consult with a veto over development.

The court looked at a claim by the Chippewas of the Thames First Nation in southwest Ontario, who claimed they had not been consulted adequately over the reversal of the Enbridge-owned Line 9 pipeline between Sarnia and Montreal.

The court judged that the Chippewas were informed the National Energy Board would hold hearings; were granted funding to participate; and subsequently filed evidence outlining their concerns about increased ruptures and spills.

The NEB approved the project, on the basis that the impact of the reversal of an existing pipeline would be minimal and mitigated by conditions imposed on Enbridge. The Supreme Court agreed.

http://nationalpost.com/opinion/john-ivison-plunging-investment-in-canadas-natural-resources-should-be-the-cover-story/wcm/0df509b2-1e85-412b-aaee-ffdf7c065dfa

. July 27, 2017 at 10:01 pm

SCC resource decisions do not put blind faith in the NEB

On Wednesday, the Supreme Court of Canada delivered two landmark rulings on the Crown’s duty to consult and accommodate Indigenous peoples.

Commentators around the country are asking what these decisions mean for government, industry and Indigenous groups. Many have heralded the Clyde River decision as a victory for Indigenous rights. By contrast, some have read the decisions as industry-friendly and argue that they offer a “blueprint” on how to push pipelines and other projects through the National Energy Board (NEB) or other regulatory agencies.

Ultimately, it will be up to the courts to determine how these rulings apply to future cases, but it is important to understand what the rulings did and did not say. It would be dangerous and unhelpful if government and industry interpreted these rulings to mean the NEB process is good enough – as some outlets have suggested. Blind reliance on the NEB’s process is why the government was on the losing end of the Clyde River case.

It would also be wrong to suggest that the NEB alone can discharge the duty to consult Indigenous peoples. That duty continues to rest with the Crown. What the Supreme Court held is that the Crown “may rely on steps taken by a regulatory agency,” but the “ultimate responsibility” for ensuring that consultation is adequate always rests with the Crown. And where the regulatory process being relied upon does not achieve adequate consultation or accommodation, the Crown “must take further measures to meet its duty.”

Practically speaking, this means the government must carefully scrutinize each and every regulatory process and determine what it can rely on and what else it needs to do to discharge its duty-to-consult obligations.

. July 27, 2017 at 10:02 pm

“But Canada should not be satisfied with doing the bare minimum. Canada should strive to be better. You don’t achieve reconciliation by doing the bare minimum. This may be what the Supreme Court meant when it said that “[t]rue reconciliation is rarely, if ever, achieved in courtrooms.”

Reconciliation will require respecting international law and Canada’s international commitments. Prime Minister Justin Trudeau should finally put his money where his mouth is and introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples, including the doctrine of free, prior and informed consent. Consent is not a “veto.” It is an acknowledgment that for Indigenous peoples’ rights to be meaningful, they must entail corollary obligations on government. Consent will not be required in every case, but where the impact on Indigenous rights is substantial, nothing short of consent will respect those rights or achieve reconciliation.

The Trudeau government can choose to treat these Supreme Court decisions as a blueprint for helping industry through the regulatory process. Or it can embrace the spirit of these decisions, which urge the government to pursue a path of reconciliation with Canada’s Indigenous peoples. We stand at a fork in the road of Canadian history. Let’s take the path of reconciliation. For real this time.”

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