Fixing First Nations consultation imperative
Governments can’t leave it to industry, Jim Boucher and Archie Waquan write.
The overturning of the Trans Mountain Pipeline expansion has rocked Albertans. The First Nations of the Athabasca region, too, were sorely disappointed. We looked forward to partnering with Canadians by purchasing an equity stake in the project that carries Alberta oil to tidewater.
However, we also support better consultation with First Nations to address indirect project impacts because we know from experience that Aboriginal and treaty rights are too frequently dismissed in that process.
The decision of the Federal Court of Appeal hinged on two failures: Canada did not consider the impacts of shipping on orca populations, and it failed to deliver on its own consultation plan. The first is a glaring oversight; the second points to systemic issues that prevent reconciliation with Indigenous people and threaten regulatory certainty.
Governments delegate consultation to project proponents. Progressive companies work with us to address our concerns and deliver real benefits to our people. They might reduce a project’s footprint, implement dust control, or engage us in business development.
But some very real problems, like cumulative effects, are just too big to be addressed by any one company; this is government’s responsibility.
Government too often leaves industry and First Nations to “sort it out,” but that leads to serious omissions. Industry is accountable to its shareholders, not the public interest or Indigenous people.
Government must address the issues that are too big for single industry players.
Notably, in its fourth and final phase, the federal government did consult on TMX’s larger issues but failed to execute its own plan by neglecting mitigation or accommodation. In effect, consultation was a hollow exercise to pacify Indigenous communities without responding to their concerns. The Federal Court looked for more.
When a project follows on the heels of other projects and further fragments habitat, imperils wildlife, or threatens drinking water, what happens? In Alberta, cumulative effects are deemed “out of scope.”
When a project is assessed for approval in Alberta, these issues dominate the conversation to no avail. Canada recognized such concerns with TMX and at least added a fourth Indigenous consultation phase to hear them.
Alberta will hardly acknowledge cumulative effects, let alone address them. Instead, out-of-scope concerns are referred to a dead-end government process that has neither the mandate nor tools to resolve them. Alberta seems to hope companies can “buy off” Indigenous communities. Meanwhile, industry feels held hostage by a congenitally flawed process.
The courts have repeatedly affirmed Indigenous appellants’ belief that governments must improve consultation. What does this mean for oilsands development? What does it mean when companies seeking project approval fear a loss of investor confidence? What does it mean when Indigenous rights are steadily eroded and redressed only through a sympathetic court? TMX was derailed because Indigenous issues disappeared into a vacuum. What does the TMX decision mean if the provincial government ignores significant impacts to Indigenous rights?
It means Alberta, and Premier Rachel Notley especially, can demonstrate national leadership by fixing consultation, by addressing cumulative effects, by mitigating irreparable impacts.
Alberta is due to renew its consultation policy; we have worked with the province — and industry — to encourage new ways to consider cumulative effects. Renewing the policy will help Alberta’s largest industry, of which we are partners. But sharing in the prosperity generated by the oilsands should not mean we must abandon our culture, our sacred places, our fundamental identity.
It is inevitable a large energy project in Alberta will face the same uncertainty as TMX some day if the province doesn’t address cumulative effects. And if it can’t, it must say why not.
Fixing consultation is as imperative to Alberta, Albertans, and the energy industry as it is to Indigenous people.