Writing in the National Post, MLI author Dwight Newman is calling on businesses involved in natural resource development to engage with the ‘duty to consult’ doctrine as a means of gaining support from Aboriginal groups.

Newman, who wrote “The Rule and Role of Law: The duty to consult, Aboriginal communities and the Canadian natural resource sector”, says this is the best way to create a win-win arrangement between First Nations and businesses.

Dwight Newman, June 16, 2014

The success of Canada’s energy industry depends on overcoming challenges associated with environmentally responsible resource extraction and distribution.

The toughest task may not be physical. Highly sophisticated technology and a highly skilled energy-sector labour force are accomplishing things never dreamed of. The toughest challenges today may actually be those associated with gaining sufficient societal approval of necessary transport infrastructure like pipelines. These challenges are not going to go away on their own and must be faced head-on.

A key element of the legal framework that will affect the fate of Canada’s various pipeline projects – both directly and through its impacts on social perceptions – is the legal doctrine called the “duty to consult.” The set of rules associated with the duty to consult developed as a result of Supreme Court of Canada and lower court decisions over the past decade. The doctrine says that governments must consult with aboriginal communities whose aboriginal or treaty rights may be affected by government decisions. This requirement applies even where there has not been a final legal resolution of the scope of the rights at issue.

The courts developed this doctrine in the context of cases that involved a particular First Nation affected by a specific decision. Applying it to a lengthy pipeline that crosses many aboriginal communities’ traditional territories amplifies the effects both of the doctrine and of myths that commonly surround it.

The duty to consult exists so that governments become aware of the potential effects of their decisions on aboriginal and treaty rights in advance, allowing them to make appropriate adjustments. The courts have repeatedly made very clear that the duty is not meant to create a veto power held by aboriginal communities. It is a real protection for aboriginal communities, and that must not be forgotten. But it does not create a utopian legal requirement for the unanimous agreement of aboriginal communities along a pipeline route.

There are people who give the impression that the duty to consult does create a veto power. That they do so makes it more difficult for different people to come together in the pursuit of common solutions. Disappointed expectations, based on mistaken understandings, can generate volatile reactions.

At the same time, many mistakenly think that aboriginal communities are standing in the way of development. That myth does real harm to Canada. Many aboriginal communities are actually keen not only to have certain core cultural and spiritual interests protected – something any community understandably wants – but also to pursue economic development, including through participation in energy resource development.

Endless delays put in the way of the Mackenzie Valley Pipeline until the project’s economics dissolved have harmed not only Canadian economic development generally but also the prospects of aboriginal communities that were going to be active participants in the project as economic partners.

Those with the power to affect public perceptions on the duty to consult have a real responsibility to communicate accurately so that misunderstandings do not take hold. Advocacy and sensationalism must yield to the broad public interest. Speaking truth to power quite frankly means also being ready to speak back to those who would misuse the power of claims for consultation to illegitimately thwart the legal rights of others.

The legal reality is, first, that pipelines using existing routes and rights of way generate only very limited consultation obligations with respect to their new effects. Second, consultation on other pipelines can support the protection of core aboriginal interests even in the face of ongoing diversity of opinion about particular projects.

At the same time, experience with the application of the duty to consult to projects affecting one particular community now offers larger lessons. Often, the duty to consult has helped encourage industry stakeholders to negotiate win-win arrangements with aboriginal communities. Through deals like Impact and Benefit Agreements or joint ventures, many communities have gained economic participation and community-building opportunities.

In the context of pipeline projects affecting many communities, prudent policies will ensure that benefits from the project are spread around fairly. Some of those benefits may be required from industry stakeholders, and some can come from visibly directed shares of increased government royalties. Ensuring that the benefits of projects are widely seen is an important part of fostering societal approval of ongoing resource development. For Canada’s future as an energy superpower, massive steps forward in technology need to be accompanied with sophisticated approaches to law and astute approaches to broader policy questions.

Dwight Newman is Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan. He recently authored a report on the duty to consult for the Macdonald-Laurier Institute. His latest books include Natural Resource Jurisdiction in Canada (LexisNexis 2013) andRevisiting the Duty to Consult Aboriginal Peoples (Purich Publishing 2014).

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