Summary
By Shari Narine
Windspeaker.com Contributor
OTTAWA
Indigenous leaders assert that the United Nation’s Declaration on the Rights of Indigenous Peoples must figure into legal decisions when the Crown’s obligation to consult and accommodate is being considered.
But Nigel Bankes, professor and chair of natural resources law at the University of Calgary, says the Supreme Court of Canada made it clear in its two decisions rendered July 26 that it will take a special case for UNDRIP to be used as a basis for SCC’s decisions.
“The court won’t resort to looking at the declaration unless they think it really adds value in a particular case. And I guess they’re saying here, ‘We can decide this simply thinking about domestic law’,” he said.
On Wednesday, two unanimous decisions were rendered by the SCC in two separate appeal cases that dealt with the authority of the National Energy Board.
SCC ruled that the NEB can fulfill the Crown’s obligation to consult on resource development. The catch, says Bankes, is that the regulatory body must be making the final decision, and not making a recommendation to Cabinet.
And while the SCC held that the NEB had that authority, the country’s highest court also ruled that the NEB had not been consistent.
The SCC said the NEB had properly consulted with the Chippewas of the Thames First Nation in Ontario, about Enbridge’s Line 9 pipeline project. The court noted that the First Nation had an active role in the hearing, even receiving financial aid to participate.
The degree of consultation was in keeping with the project – which was not a new project – and therefore a historical review of the infringements on the First Nation over the past 100 years was not necessary, says Bankes.
In the second appeal case, the SCC said the NEB had failed when it came to including the Inuit Hamlet of Clyde River in Nunavut, in consultation for proposed seismic testing in and near marine areas. The court pointed to delay tactics, an electronic information dump of material, and a failure to examine how this would affect treaty and Indigenous rights.
Assembly of First Nations National Chief Perry Bellegarde applauded the Clyde River decision, but expressed disappointment with the Chippewas of the Thames First Nation decision.
“The AFN’s position is that the Crown’s consultation and accommodation obligations must be understood in the context of the standards set by the UN Declaration on the Rights of Indigenous Peoples, including the standard of free, prior and informed consent,” Bellegarde said in a written statement.
Bankes says the SCC made no reference to UNDRIP in its decision, although he assumes the Chippewas of the Thames First Nation would have included UNDRIP in its argument to the Supreme Court.
“The court is quite explicit in saying the duty to consult is not a veto. There’s no reference to free, prior, informed consent or anything like that…. Obviously they chose to stay as far away from it as they could,” he said.
What can be taken from these decisions, says Bankes, is a clearer understanding of the expectations. The decisions provide guidance to the proponents, Indigenous groups, and the regulators. But, he admits, that doesn’t mean litigation in situations dealing with consultation and accommodation will end.
Bankes says the federal decision will have an impact on resource development on Indigenous lands in Alberta.
“In principle what the court is saying here in context of the National Energy Board is its going to be equally important in context of Alberta’s regulators – the Utility Commission and the Alberta Energy Regulator – so people shouldn’t be saying this is a federal decision for the NEB (and) not relevant to provincial authorities. I think they are,” he said.
The SCC has also said that the NEB has the ability, at the end of a hearing, to decide questions of law, which includes determining whether the Crown’s duty to consult has been fulfilled.
“(This) will be important in Alberta, because the Alberta Utility Commission has said specifically not, that it doesn’t have the authority to do that and won’t make that kind of ruling,” said Bankes.