Governments, law, resources and how they intertwine with Indigenous rights
Inadequate consultation. Those two words were paramount in the disapproval the Northern Gateway pipelines Enbridge planned to construct from the Athabasca oilsands in Alberta to Kitimat on the northern coast of B.C.
The twin pipeline would have imported natural gas condensate eastbound, while the westbound pipeline would have exported diluted bitumen from Alberta to a marine terminal in Kitimat for transportation to international markets via oil tankers.
First Nations groups, among others, denounced the project for several reasons, including environmental, social and cultural risks posed by the pipeline.
Enbridge countered by saying the pipeline would provide Indigenous communities with equity ownership, employment and stewardship programs.
The two sides took their battle to court where the Federal Court of Appeal ruled that consultation with First Nations was inadequate. It overturned the approval.
This is one of many examples where resource development projects intertwine with Indigenous lands and Indigenous rights.
Benjamin Ralston, a sessional lecturer at the University of Saskatchewan’s College of Law, provided some colour to this grey area during his presentation Indigenous Consultation and the Public Interest for Engineers and Geoscientists during the annual meeting.
“As an engineer or geoscientist, you have ethical obligations to adequately communicate information to the public,” he says. “But in doing so, there’s not just an environmental dimension to that and not just the public safety dimension. There’s also this constitutional right aspect that could play into that.”
He adds that what is so challenging with Indigenous rights is how it is inter-related with various other factors that engineers and geoscientists deal with. There are considerations of bio-physical, technical, economic and social dimensions of resource development and environmental protection and how they are inter-related. These often can’t be disentangled.
Similarly, the protection of Indigenous rights is tied to these same factors.
The example of the Northern Gateway project relates to the duty to consult. This should allow Indigenous people to participate in resource management decision-making even when the scope of their rights remains uncertain.
Several First Nations in B.C. said neither the Crown nor the established assessment process for the Enbridge project adequately met their duty to consult and accommodate or respect their Aboriginal Rights and Title.
The duty to consult is about managing the uncertainty through meaningful consultation and accommodation of Indigenous concerns while these matters are negotiated or litigated in courts.
Duty to consult also serves as a prerequisite to any finding that a project is in the public interest and should be approved.
Ralston relayed advice the courts have given from similar projects that have either been quashed or upheld.
- Timing. The earlier the consulting is done, the better. Consultation should be prompt and occur at the planning or environmental assessment stage rather than at the licensing stage.
- Community engagement with elders an retain any outside experts.
- Consultation needs to focus on Indigenous rights. In order for this to meet the Crown’s duty to consult, it can’t be consultation about bio-physical effects. It has to be about impact on rights.
- Decision-makers also have to be open to changing their minds based on their information. Maybe a change in policy or a different decision is required
“Everything we do in law is grey,” Ralston says. “But you have different governments at varying levels that come up with their own ideas about how to engage in consultation. Each province and territory will propose its own consultation policy.”
“Indigenous rights within Canadian law and this duty to consult and accommodate is an inter-disciplinary conversation. It involves all sorts of technical skills and all sorts of legal advice. But it is not restricted to this domain of the courtroom.”