I always enjoy reading articles like the one attached in this post. It tells us that industry needs to understand the “Duty to Consult”, that transparency in the discussions are paramount and that the process must be “meaningful.” All great words and it should be simple, right? HA!
Let’s talk about the “Duty to Consult.” Yes it lies with the crown but the crown can delegate procedural aspects of the consultation to industry. And honestly it is in industry’s best interest to engage with the nations directly to understand how to adjust their project to accommodate any concerns brought forward. And this duty lies within our Constitution, there is not “getting around it” or using economic gain as the deciding factor. The project’s benefits must be greater than the risks to the loss of aboriginal rights to the nations. When it comes to projects such as Enbridge’s Gateway there is a very fine line between risks and the benefits. I do not envy the decision makers on this project.
Transparency, what does transparency mean? In my humble opinion it means honesty, no game-playing and candid conversations. This transparency applies to all parties involved: government, nations and industry. In this very litigious world we live in, everyone is cautious about putting “all their cards on the table” and they have every right to be. No matter how amazing your relationship with each party may be if you mess up you may end up in court (government or industry) or you won’t have any leverage to protect an area for future generations (nations). It will only take time to pass this hurdle, but first we must start working together.
Then we have “meaningful engagement” – what does this mean? Is there a process to follow to ensure industry and government meet certain requirements or “check” boxes? Where is the line when you just say that’s enough? Funny thing is there is no certain process or “check boxes” to follow it is about the relationship (and of course transparency), understanding the issues/concerns and any and all attempts to accommodate these issues/concerns by government and/or industry. As well the nation themselves have to participate fully in the discussion. How does this work when there is lack of knowledge and people within the nation to fill the roles to discuss these resource projects? – now it’s about time and money. So to accommodate this government, industry and nations start the long winded letter writing with legal support…I am not saying this is horrible, but really who is winning here? – the Lawyers!
So within the Duty to Consult we need to have transparent and meaningful engagement, which sounds wonderful but definitely not an easy task. I hope there will be a time where nations, government and industry will sit together to discuss and plan resource development projects proactively…it may take another generation or two but you never know we may get there sooner.
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OTTAWA – Pipeline companies and other industrial stakeholders could be obliged to abandon or alter proposed projects – if a review identifies risks of irreversible impacts – because of the Canadian government’s constitutional responsibility to accommodate the rights of First Nations groups, says a newly-released internal federal discussion paper.
The document, released through access to information legislation by Aboriginal Affairs and Northern Development Canada, was prepared in advance of a December 1, 2011 meeting in Calgary between federal government officials and representatives of a pipeline industry lobby group.
It highlighted First Nations rights defined under the 1982 constitution and upheld in various court decisions.
“Accommodation can vary from: adjusting an activity or process to abandoning a project, to placing terms and conditions on any permits or authorizations,” said the discussion paper.
The document was prepared as stakeholders from the oil, gas and pipeline industries were actively promoting proposed pipelines linking the oilsands industry in Alberta to the west coast of British Columbia, in the midst of delays in approval of the proposed Keystone XL pipeline expansion project to the Texas gulf coast in the U.S.
“The duty to consult and accommodate (DTC) is part of a process of fair dealing and reconciliation which flows from… the Constitution Act, 1982, and the Crown’s duty to deal honourably with Aboriginal peoples,” said the document.
“The DTC is designed to prevent irreversible harm to aboriginal interests prior to negotiated settlements and to manage ongoing relationships with treaty groups in a way that upholds the honour of the Crown.”
Proposed pipeline projects, such as Enbridge’s Northern Gateway and Kinder Morgan’s Trans Mountain expansion to B.C., could help support growth of oilsands production, giving companies access to new markets in Asia.
But Greenpeace Canada’s climate change and energy campaigner Keith Stewart, who obtained the document, said it shows that the government could be forced to reject approval on projects such as the Enbridge proposal, which has generated opposition from more than 100 First Nations groups that fear irreversible damage to their rights and communities.
“This government can rewrite environmental laws but it can’t rewrite the constitution,” said Stewart, referring to recent laws proposed and adopted in Parliament to weaken federal oversight and deregulate federal environmental monitoring and evaluations of projects.
The office of Aboriginal Affairs and Northern Development Minister John Duncan said that the government of Canada “respects its duty to consult and, where appropriate, accommodate First Nations,” and that it has enhanced its approach to consultations to ensure First Nations are involved from the start of a review process.
It also said it would “continue to work with First Nations to ensure healthier, more self-sufficient communities by creating conditions for them to participate in all of the economic opportunities that Canada has to offer.”
A spokesman for the Canadian Energy Pipeline Association confirmed that federal officials had made the presentation last December during their meeting. He said that it referred to different ways the government could apply the principle of Crown accommodation.
“What is important for us is to understand what the Crown does so we know where industry fits in the overall mitigation/accommodation process,” wrote Philippe Reicher, the industry association’s vice president of external relations, in an email.
The document also stressed the importance of transparency throughout the process as part of the government’s duty to consult First Nations.
“Principles of procedural fairness should be upheld, including a clear description of how aboriginal groups’ concerns have been considered,” said the document.
The minister’s spokesman, Jan O’Driscoll, also noted that the government had announced $13 million in new funding in its 2012 budget to support consultations with First Nations and that it agreed with guiding principles such as transparency – highlighted in the document – to carry out “meaningful consultations” with First Nations.
By Mike De Souza, Postmedia News