by Thomas Walkom
The Supreme Court has confirmed that Indigenous nations do not have the right to veto resource development projects. This is the upshot of two separate rulings released Wednesday.
That is good news for proponents of oil and gas pipelines, such as the controversial Kinder Morgan project in British Columbia.
It is bad news for those who had hoped that Indigenous resistance would be sufficient to derail such projects, including pipelines designed to move heavy oil from Alberta to tidewater.
The two decisions are particularly important in that they provide a road map for resource companies and their regulators on how to organize proposed projects in a way that passes legal muster.
At the heart of this is the fact treaties signed between Indigenous nations and the Crown are part of Canada’s constitution. The courts have long held that this alone requires the government to consult with First Nations before authorizing projects that could affect treaty rights.
What hasn’t been entirely clear is what consultation requires. Is it a weak requirement that means Indigenous views, like those of environmentalists, must be taken into account by government before a final decision is made?
Or is it a strong requirement that means affected Indigenous nations must give their consent before a resource project such as a pipeline can go ahead?
This week, the top court, came down firmly against the latter interpretation.
“The duty to consult does not provide Indigenous groups with a ëveto’ over final Crown decisions,” the court ruled in a case that pitted pipeline giant Enbridge against the London-area Chippewas of the Thames First Nation.
And while Indigenous peoples may have a “special public interest,” the judgment reads, in the end that interest must be balanced against other competing societal needs.
Put simply: Indigenous interests don’t automatically trump all others.
This week’s rulings focused on two radically different cases. In one, centred around the tiny Inuit community of Clyde River, Nunavut, the court said the Crown, in the form of the National Energy Board (NEB), did just about everything wrong.
In the other, featuring the Chippewas of the Thames, the court found that the NEB did just about everything right.
For Clyde River, the issue was seismic testing. Oil exploration companies wanted to set off sonic explosions in the Arctic Ocean near the hamlet in an attempt to locate undersea petroleum deposits.
The local Inuit argued that this would spook the whales, seals and polar bears the community hunted.
At one point, they reportedly asked for $10 million in compensation. The companies declined.
The entire issue went before an NEB panel, which essentially approved the seismic testing scheme.
But the court ruled that in doing so, the NEB failed to adequately consult the Inuit. It didn’t hold oral hearings nor did it provide the local community with funding that would allow it to intervene effectively.
As well, it made no objection when the companies, in response to Inuit questions, replied with a 3,926-page online document written almost entirely in English.
This in a community where most spoke only Inuktitut and where internet access was rudimentary.
The court ruled that none of this constituted adequate consultation and overturned the NEB approval.
In the arguably more important Chippewa ruling, however, the court sided with Enbridge and the NEB against the local Indigenous community.
This case revolved around Enbridge’s plans to expand and adjust an existing pipeline to let it ship heavy oil from the west to the east – plans which had been okayed by the NEB.
Here, the court ruled, the government agency had met its obligation to consult. It held oral hearings; it provided the Chippewa with intervenor funding; it took Indigenous treaty concerns seriously.
That the Crown, in the form of the NEB, ultimately decided against the Chippewa, the court said, was beside the point. It had taken their Aboriginal rights into account. It had weighed them in its decision.
This, said the court unanimously, is all that the Crown is required to do.
Thomas Walkom appears Monday, Wednesday and Friday.
Copyright 2017-Torstar Syndication Services