Canada Must Consult With Aboriginal Groups on Land Use: Court

Bloomberg BNA — A ruling June 26 by the Supreme Court of Canada that the federal and provincial governments must consult and accommodate aboriginal groups on proposed uses of aboriginal lands could play a significant role in government decisions on energy projects and pipelines.

“The right to control the land conferred by aboriginal title means that governments and others seeking to use the land must obtain the consent of the aboriginal title holders,” Chief Justice of Canada Beverley McLachlin wrote in the unanimous decision of eight judges. “If the aboriginal group does not consent to the use, the government's only recourse is to establish that the proposed incursion on the land is justified” under Section 35 of the Constitution Act, 1982, she said. Section 35 affirms indigenous rights.

McLachlin said Section 35 “directly addresses the requirement that these interests must be respected by the government, unless the government can justify incursion on them for a compelling purpose and in conformity with its fiduciary duty to affected aboriginal groups.”

Aboriginal groups welcomed the ruling.

“This decision will bring much needed certainty for First Nations, government and industry,” Chief Joe Alphonse, tribal chairman of the Tsilhqot'in National Government, said in a June 26 news release. “This case is about us regaining our independence—to be able to govern our own Nation and rely on the natural resources of our land. We are ready to move forward in this new relationship with government and industry. That work starts today.”

Pipeline Impacts Seen

West Coast Environmental Law attorney Jessica Clogg told Bloomberg BNA the ruling could impact energy pipeline projects such as the Enbridge Northern Gateway Pipeline and Kinder Morgan's Trans Mountain pipeline twinning, both of which would move oil to Canada's west coast.

Canada's federal government June 17 approved construction of the Enbridge project to move bitumen from the Alberta oil sands to the West Coast for tanker shipment.

The Kinder Morgan project remains under assessment and is being challenged by an aboriginal group .

Clogg said the court established strict environmental rules that aboriginal groups and the government can do nothing to harm land for future generations.

She said that in cases where aboriginal consultation on projects is in question, the government may be required to begin those processes over.

Decision Seen Affecting Everything

“Because there are indigenous people really blanketing all of B.C., it affects everything that goes on,” Clogg said. “Resource companies need to be acting today with this in mind.”

Dealing with aboriginal land rights is one of five conditions British Columbia established for approval of heavy oil pipelines through the province from the Alberta oil sands .

Provincial Environment Minister Mary Polak said the condition for new federal rules for oil spill response on land and water are effective enough to meet the province's demands for “world-leading” environmental protection.

On May 21, Canada said that companies involved in oil pipeline spills will be liable for costs and damages up to C$1 billion (US$935.3 million), irrespective of fault.

On May 13, Canada promised additional measures to strengthen its oil tanker safety regulations, including improvements to the polluter pay regime to ensure full compensation to eligible claimants for offshore spills.

Northern Gateway Approval

Attorney General Suzanne Anton told a June 26 news conference the government would continue to work on environmental issues with aboriginal groups after the Supreme Court ruling, but said Northern Gateway approval, opposed by many aboriginal groups, remains off the table.

“We will not consider that pipeline until that condition is met,” Anton said.

In neighboring Alberta, Ministry of Aboriginal Relations spokesman Martin Dupuis told Bloomberg BNA that the government is reviewing the ruling.

“It would be premature to comment on it in detail at this time,” he said. “Alberta continues to maintain open and productive dialogue with Aboriginal communities and our colleagues across Canada to address aboriginal issues.”

Provincial legislative opposition leader John Horgan said in a June 26 news release that dragging the case through the courts and battling with aboriginal groups only to have the case reaffirm earlier rulings had created uncertainty for industry.

Reconciliation is “essential to developing B.C.’s economy in a balanced way that benefits all communities and protects B.C.’s air, land, water and wildlife,“ Horgan said.

Seen Providing Clarity

Alex Ferguson, vice president of policy and environment for the Canadian Association of Petroleum Producers, told Bloomberg BNA the ruling gives government, aboriginals and industry clarity on consultation on developments.

Moving forward, he said, companies need to examine their work to ensure they are engaging in proper consultation with aboriginal groups.

David McLelland, chairman of the Association for Mineral Exploration British Columbia (AME BC), said in a June 26 news release the ruling affirms the government's duty to consult with aboriginal nations.

“Members of AME BC recognize that respectfully engaging with First Nations early and often creates mutual understanding, trust and respect,” McLelland said. “We have seen that mutual benefits can often occur when this approach is taken by everyone involved, including industry, First Nations and government.”

May Need to Reassess Prior Efforts

The Supreme Court's unanimous ruling that governments must consult in good faith on proposed uses of aboriginal lands that could impair aboriginal rights will apply to decisions by all levels of government on major resource projects, Jean Crowder, aboriginal affairs critic for the official opposition New Democratic Party in the Canadian Parliament, said June 26.

The court also said governments may have to reassess prior conduct and legislation, which could prompt court challenges of past government actions, including controversial 2012 amendments to the Canadian Environmental Protection Act and the Navigable Waters Protection Act, Crowder said in a statement.

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