A CLEAR WAY FORWARD
The Supreme Court of Canada has given the nation’s oil and gas companies and its Indigenous communities much needed clarity on the rules of engagement when it comes to debating the merits or faults of resource projects.
With the simultaneous release of two separate but related rulings last week, the court has balanced the needs of industry with the rights of Aboriginals. The court has also set the bar for the National Energy Board, finally giving the regulator clarity on just what constitutes proper consultation with Indigenous groups who possess constitutional or treaty protections. And finally, the justices confirmed the NEB’s empowerment to act for the federal government in Indigenous consultations. That standard for such dialogue, the court ruled, goes well above and beyond the efforts of Petroleum Geo-Services, which wanted to search for oil under the sea floor in Nunavut by conducting seismic testing. Inuit feared the blasting would harm the marine mammals that they hunt by treaty right.
The top court ruled the consultation with the community was “significantly flawed” because officials didn’t pay to help the community participate in the review process, failed to give clear answers to questions at public meetings and when they did, it was in the form of an Englishonly, 4,000-page online document that was impossible to download with the area’s limited internet or to read for many residents who understood only Inuktitut.
“Any decision affecting Aboriginal or treaty rights made on the basis of inadequate consultation will not be in compliance with the duty to consult,” the Supreme Court said as it overturned the NEB’s previous approval.
On the other hand, the court ruled that the government did meet its duty to consult, via the NEB, in a separate ruling that ruled in favour of Enbridge. The company proposes to reverse the flow of its Line 9 pipeline through Ontario to Quebec. The project is opposed by the Chippewas of the Thames First Nation.
The top court confirmed that the NEB is allowed to fulfil the Crown’s duty to consult Indigenous groups about projects in their traditional territories — as long as it’s done properly.
Importantly, the justices noted that while Indigenous rights must be honoured, the communities do not hold veto power over energy projects in their traditional territory. Their rights must be balanced against “competing societal interests.”
The impact of these two rulings goes well beyond giving a win and loss each for the industrial and Indigenous sides. It gives the oilpatch and affected Aboriginal communities a path to follow in future development reviews.