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.

Resource Companies Grapple With Supreme Court Decisions on Duty to Consult #Indigenous Communities https://t.co/anD2jUvFTK #cdnpoli

— DeSmog Canada (@DeSmogCanada) August 24, 2017

‘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

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The federal government has failed to fulfill its legal duty to consult First Nations in Ontario and Quebec about Enbridge’s Line 9 project that would see oilsands bitumen shipped through a 37-year old oil pipeline.

“This is not an issue of inadequate or improper consultation with First Nations. No consultation by the federal government has taken place whatsoever,” says Scott Smith, the lawyer who represented Aamjiwnaang and Deshkon Ziibi* (Chippewas of the Thames) – two Anishinaabe* First Nations of southwestern Ontario – during the Line 9 hearings. The hearings concluded on October 25th.

Failing to consult with the fourteen Anishinaabe (Ojibwe), Haudenosaunee* (Iroquois), and Lenape (Delaware)* First Nations communities living along or near the Line 9 pipeline could land the federal government and the Line 9 project in court.

“Transporting dilbit (diluted bitumen) through Line 9 is going to have a big impact on us, our drinking water and our traditional practices. It will increase the risk of a rupture,” Myeengun Henry, a band councilor from Deshkon Ziibi told DeSmog Canada.

An international pipeline safety expert revealed to DeSmog Canada in an interview in October that if Line 9 is approved to ship bitumen (technically “dilbit” when transported through pipelines) the probability of the pipeline rupturing is “over 90%.” Line 9 has never transported heavy crudes such as bitumen before.

The ‘honour of the Crown’ Demands the Federal Government Must Consult

When the federal government is contemplating a decision that has the potential to adversely impact indigenous peoples in Canada (First Nations, Inuit, Métis) the government is legally required to consult with the affected indigenous parties to ensure their best interests are met and their rights protected.

This ‘duty-to-consult’ flows from a legal concept called the ‘honour of the Crown.’ The federal government is required to act “honourably” or in the best interests of indigenous peoples in regards to their rights. The legal precedent for the duty to consult comes from the Supreme Court’s ruling in Haida First Nation v. British Columbia in 2004:

“The honour of the Crown requires that these (indigenous) rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.”

“Failing to consult with First Nations about Line 9 is a slap in the face to Canada’s own law,” says Henry from Deshkon Ziibi. Deshkon Ziibi is near London, Ontario.

Aamjiwnaang and Deshkon Ziibi also sent a joint letter to the Prime Minister Stephen Harper, Minister of Natural Resources Joe Oliver and Minister of Aboriginal Affairs Bernard Valcourt dated September 27th inviting the federal government to initiate consultations with them on Line 9. They have yet to receive a reply.

Proposal to Ship Bitumen ‘Triggered’ the Duty-to-Consult

Scott Smith, the lawyer acting on behalf of Aamjiwnaang and Deshkon Ziibi argued during the Line 9 hearings the federal government cannot avoid consultations with his clients simply because Line 9 is an existing pipeline:

“Enbridge’s proposal to fundamentally repurpose Line 9 to make it commercially viable again has the potential to cause new and additional impacts on the Rights (of Aamjiwnaang and Deshkon Ziibi),” stated Smith in an oral submission.

The Anishinaabe, Haudenosaunee, and Lenape have recognized rights under Section 35 of the Canadian constitution to hunt, fish and harvest on their traditional lands. A ‘dilbit disaster’ on the scale of the Kalamazoo spill in Michigan or the Mayflower spill in Arkansas would severely impede their ability to practice these rights.

Free, Prior, and Informed Consent is the New Standard for Indigenous Peoples

“The duty to consult and accommodate is the minimum standard here,” says a letter about Line 9 from the Chiefs of Ontario sent to the National Energy Board (NEB) on August 6th. The NEB oversees the approval or denial of proposed pipeline projects such as Line 9.

“First Nations now assert a right to Free, Prior and Informed Consent in the case of proposed projects that are likely to affect their rights,” the letter explains. The Chiefs of Ontario is an organization representing 133 First Nations in the province.

The concept of ‘free prior and informed consent’ or FPIC is found in the UN Declaration on the Rights of Indigenous Peoples. FPIC goes a step further than the duty to consult by requiring national governments “to obtain (indigenous peoples’) free, prior and informed consent” before making a decision that may affect indigenous peoples.

“There has been no attempt to conform to the Free, Prior and Informed Consent (FPIC) standard of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Our position is that rubber stamping of the Enbridge proposal will harm the environment and will violate First Nations rights,” concluded the Chiefs of Ontario.

The Canadian government rather reluctantly signed on to the declaration in 2010. The declaration is not legally binding and the Canadian government has been accused of interpreting “consent” as consultation.

Enbridge proposes to reverse Line 9 to flow west-to-east, increase the capacity of the pipeline from 240,000 to 300,000 and transport heavy crudes such as oilsands bitumen through the pipeline.

Critics of the Line 9 project say the pipeline should not be approved to ship bitumen because of the likelihood of a rupture and the adverse impacts further expansion of the tar sands will have on climate change and the people and environment of northern Alberta.  

The NEB – Canada’s independent energy regulator – will most likely make their recommendation on Line 9 in January 2014. The federal government can override any decision made by the NEB.

*Anishinaabe, Haudenosaunee, and Lenape are the names for the “Ojibwe”, “Six Nations”, and “Delaware” in their respective languages. Deshkon Ziibi is the Anishinaabe name for “Chippewas of the Thames”. 

Image Credit: Environmental Defence, Enbridge

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