The Crown Consultation Issue Practical Considerations for Project Developers

The Problem  The duty to consult arises whenever the Crown contemplates issuing an approval that may adversely affect an asserted or proven Aboriginal right  The duty is constitutional, not legislated  Result is that the circumstances in which the duty may arise, and the content of that duty is a product of case law, not statutory codification  Because duty owed by the Crown, in some respects the management of risk is out of the Project Proponent’s control

Consequences of Failure to Consult  Duty of consultation provides both procedural and substantive rights to Aboriginal Groups  Rights = leverage  Consequences of failure to consult are primarily creation of delay risk and uncertainty of result

Consequences of Failure to Consult  Consultation card may be played at various stages of Project Development During “strategic planning” by government [Haida] During exploration [Platinex] During Environmental Assessment process preceding filing of regulatory application(s) [Dene Tha’/Mackenzie Gas Project] During a hearing [Alliance; Georgia Strait Crossing] Following a regulatory decision [Mikisew Cree; Taku River]  Impact of failure to consult will depend on how regulators and courts respond to the issue, when it is raised

Consequences of Failure to Consult  Impacts can include: Delay while Crown decides how to respond Delay while Consultation process is developed Interruption of ongoing proceeding Delay in receiving final approval while further consultation is undertaken (B.C. model) Delays in ancillary permitting and associated activities (e.g., environmental field work) Delays while additional, Court ordered consultation takes place following decision Costs

Risk Management Recommendations (Proponent)  Project Scheduling  Build relationships and do deals where possible  Build a track record  Encourage appropriate level of Consultation by the Crown

The Bigger Picture  Flood of litigation, and threatened litigation  Industry, Government and Aboriginal Groups need to address underlying agendas  S.C.C. has opened door for proceduralizing Crown consultation. Imperative for Government to pursue that opportunity, preferably with broad support

The Bigger Picture  Factors should include Inclusiveness Legally defensible Opportunity – based Done at an early time Done within a reasonable temporal framework Focus on issues that deserve the most attention (i.e., scoping)  No need to start from scratch. Many parallels to evolution of modern environmental assessment processes and opportunities for coordination, especially (but not only) in areas that are subject of modern treaties (land claims agreements)  Implementation would be a challenge, especially if responsibility is decentralized, with no legislative frame work

Prospects for Resolution  Growing awareness of nature and scope of the problem  Steps being taken by various governments and departments [e.g., B.C.; Saskatchewan; NWT]  Lack of cohesive plan  Sidecar issues will make consensus difficult to achieve, in short-term