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Canada High Court Landmark Decisions Back NEB, Define Acceptable Consideration of Aboriginal Claims

Canadian industry kept a path to project approvals through the maze of aboriginal constitutional rights and power claims in landmark judicial verdicts Wednesday on energy development disputes in Ontario and Nunavut.

The Supreme Court of Canada upheld the hotly contested authority of the National Energy Board (NEB) to resolve native issues and used two cases to set examples both for legally proper and for unacceptable regulatory procedures.

The decisions, on a complex field known as “duty to consult,” supported NEB approval of an Enbridge pipeline project in Ontario but quashed the board’s permit for a marine seismic survey offshore of Nunavut by Petroleum Geo-Services.

In the Ontario pipeline case, the court said the NEB and Enbridge fulfilled the legal bill by providing thorough notice and explanations, subsidizing aboriginal participation in project hearings and incorporating native concerns into approval conditions.

The Nunavut seismic survey case missed the legal boat by including only minimal informal community meetings, no public hearings, no attempt to provide plain language explanation of a 3,926-page technical assessment and no recognition of native treaty marine mammal protection and hunting rights, the court ruled.

Both rulings rejected native power crusader demands for the official title of Canadian aboriginal communities, First Nations, to be translated into state-like status that bestows supremacy and veto rights over resource activity in claimed traditional territory.

“These cases demonstrate that the duty to consult has meaningful content, but that it is limited in scope,” said the unanimous rulings by Canada’s nine-judge top court.

“The duty to consult is rooted in the need to avoid the impairment of asserted or recognized rights that flows from the implementation of the specific project at issue; it is not about resolving broader claims that transcend the scope of the proposed project.”

The court said aboriginal communities “are not entitled to a one-sided process, but rather, a cooperative one with a view toward reconciliation. Balance and compromise are inherent in that process.”

Aboriginal rights advocates go off legal limits when they attempt to escalate resource development cases into arenas for airing centuries-old hard feelings against colonial-era settlement and industrialization, the verdicts said.

“The duty to consult is not triggered by historical impacts. It is not the vehicle to address historical grievances,” said the court.

As a quasi-judicial agency with specialized knowledge of industrial projects and their effects on communities and the natural environment, the NEB stands out as a suitable vehicle for making balanced decisions, according to the court.

“Given the NEB’s expertise in the supervision and approval of federally regulated pipeline projects, the NEB is particularly well positioned to assess the risks posed by such projects to Indigenous groups,” said the court.

“Moreover, the NEB has broad jurisdiction to impose conditions on proponents to mitigate those risks. Additionally, its ongoing regulatory role in the enforcement of safety measures permits it to oversee long-term compliance with such conditions.”

The contrasting verdicts provide a blueprint for aboriginal consultation that continues high court acceptance for long-standing NEB practice of delegating the job’s details to supervised contact between project sponsors and native communities.

“The NEB has developed considerable institutional expertise, both in conducting consultations and in assessing the environmental impacts of proposed projects,” the court said.

“Where the effects of a proposed project on aboriginal or treaty rights substantially overlap with the project’s potential environmental impact, the NEB is well situated to oversee consultations, which seek to address these effects, and to use its technical expertise to assess what forms of accommodation might be available.”

ISSN © 2577-9877 | ISSN © 1532-1231 | ISSN © 1532-1266

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