A perpetual thorn in the side of Canadian gas, oil, pipeline and power development and major stumbling block to the Mackenzie mega-pipeline project has been pared down to a manageable issue by a landmark native rights decision from the Supreme Court of Canada.

Negotiations over claims by aboriginal groups has been one of the stumbling blocks in the latest iteration of the Mackenzie Gas Project, a large-diameter pipeline project to tap the Canadian far north (see NGI, Oct. 18).

Outside the energy sector the ruling has the ring of common sense and is attracting little public notice. Old grievances are no reason to stop new energy projects, decisions or policies while Aboriginal communities are consulted, says the new legal precedent. Canada’s national requirement to pay special attention to native rights only kicks in when development has material effects on them.

But the verdict — in a case called Rio Tinto Alcan Inc. and British Columbia Hydro Authority versus Carrier Sekani Tribal Council — only emerged after a three-year legal duel that in its final stage engaged 23 plaintiffs, defendants and interveners. The national Assembly of First Nations leaped into the fray as one of 13 Aboriginal entries. The 10 other participants included the federal, British Columbia (BC), Alberta and Ontario governments, plus the country’s two biggest pipeline companies: Enbridge Inc. and TransCanada Corp.

The case deals with a gray but crucial Canadian area of intertwined native and environmental affairs, a doctrine known as “the duty to consult.” Regulatory reviews and hearings on energy schemes are routinely delayed by — and frequently escalate into legal battles over — complaints by Aboriginal groups that they are being neglected because historic mistreatment is receiving too little attention. The disputes regularly generate lengthy reports by expert witnesses, reciting alleged abuses of rights since first contacts between native societies and European explorers, settlers or industry — and often reaching farther back in time before recorded history to define rights that are said to be reliably recalled by current customs, beliefs and traditional knowledge.

The recurring contests center on Section 35 of Canada’s Constitution Act, 1982. The 79-word provision states: “The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” Further subclauses say the declaration covers everybody of both genders who qualifies to be classed as Indian, Inuit or Metis, and all rights established by land claims or agreements in force as of 1982 or that might be negotiated later.

All concerned have tried to thrash out practical meanings for the section ever since it was enacted. As an early step in a long string of legal cases, the courts ruled that as a natural legal corollary of Section 35 government authorities have a duty to consult native communities before approving projects that are liable to affect legacy rights such as hunting, trapping, fishing and the natural environment required to sustain their ways.

The new foray into answering the practical question about how the duty works arose over a routine renewal of an old energy supply contract. The deal provides for BC Hydro to keep on buying electricity surpluses from a northern dam that was built in the 1950s for a Rio Tinto Alcan aluminum smelter. In those less sensitive times the project went ahead without consulting the Carrier Sekani, a coalition of eight native communities with a total population of more than 10,000 that claim ancestral rights to an Ireland-sized 78,700 square kilometers (31,480 square miles) of the BC Interior.

Ignoring Aboriginal claims in the dam project’s path was a case of provincial authorities and industry behaving “as was the practice at the time,” says the unanimous verdict of the top court’s nine judges, written by Chief Justice Beverley McLachlin. But does that old conduct, no matter how unenlightened it looks through the hindsight of the 1982 constitutional reform, now entitle the Carrier Sekani to all the consultation that should have been done according to today’s standards?

The BC Court of Appeal said yes, in response to a native protest lawsuit against the power supply contract renewal, and directed the BC Utilities Commission to make the old missing consultation happen. The order was given even though the deal was acknowledged to make no practical difference to current environmental and living conditions in the region affected by the dam.

The Supreme Court reversed the BC legal ruling and upheld the provincial commission’s decision to approve the electricity contract. McLachlin, who is renowned for clear decisions, lays out fresh guidance on the duty to consult Aboriginal societies.

Three elements must come together to switch on the obligation, Canada’s chief justice writes.

First, “To trigger the duty to consult, the Crown must have real or constructive knowledge of a claim to the resource or land to which it attaches.” That happens when claims are recognized by treaties, formally filed in court, made in negotiations or “reasonably suspected” to be coming in future. “What is required is a credible claim. Tenuous claims, for which a strong prima facie [first impression] case is absent, may attract a mere duty of notice,” McLachlin writes.

Then, “Second, for a duty to consult to arise there must be Crown conduct or a Crown decision that engages a potential Aboriginal right.” While such actions most often involve approvals of projects that have immediate effects on land and resources, a policy change or long mineral or forestry lease that enables future development can also bring on the obligation.

Finally, McLachlin writes, “The third element of a duty to consult is the possibility that the Crown conduct may affect the Aboriginal claim or right. The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Past wrongs, including previous breaches of the duty to consult, do not suffice.”

Like all Canadians, native communities can sue for damages caused by old misbehavior, the ruling says. But the special right to be consulted is meant to stimulate negotiation, compromise and reconciliation instead of conflict. The chief justice writes, “Rather than pitting Aboriginal peoples against the Crown in the litigation process, the duty recognizes that both must work together to reconcile their interests.”

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