The government's weakening of environmental laws to fast-track tar sands mines and pipelines could soon hit a constitutional wall. And the oil industy knows they may have to learn to take No for an answer.

Last December, the Aboriginal Relations Working Group of the Canadian Energy Pipeline Association hosted a meeting in Calgary for federal officials from Aboriginal Affairs and Northern Development, Natural Resources Canada, Transport Canada, the National Energy Board and the Canadian Environmental Assessment Agency.  

The purpose of this meeting, according to documents obtained by Greenpeace under Access to Information legislation, was “to gain greater understanding of the criteria used by federal agencies to measure adequacy of consultation and improve our understanding of the role of accommodation between the Crown and project proponents.”

This is a hot topic for the oil industry because they are facing an “unbroken wall of resistance” from First Nations to their proposed new tar sands pipelines, while Shell’s proposed new mines in Alberta are facing legal challenges from the Athabasca Chipewyan First Nation and Metis groups in that province.

This opposition has legal teeth, as the Supreme Court has ruled that the “duty to consult and accommodate is part of a process of fair dealing and reconciliation which flows from section 35(1) of the Constitution Act,  1982 and the Crown’s duty to deal honourably with Aboriginal peoples.”

That quote is drawn from the powerpoint presentation made by Aboriginal Affairs officials to the representatives of the pipeline industry. The presentation also notes that “meaningful accommodation” of First Nations rights must include the possibility of “abandoning a project” (p. 9 of the pdf – see  also the “Strategies for Accommodation” table on page 12 of the pdf).

So it is interesting to note that 8 months later, the Canadian Energy Pipeline Association (along with all of the other heavy hitters from the oil industry) asked the government to make a “go-no go” decision before the environmental assessment process begins, arguing that the “regulatory focus should be on ensuring the project is conducted in an environmentally responsible way, not on revisiting the development right” (see page 12 of their August 2012 proposal: “A Canadian Energy Strategy Framework: A guide to building Canada’s Future as a global energy leader”).

This would appear to be in direct conflict with the obligation (noted in that Aboriginal Affairs briefing document) to consider abandoning a project if the impacts on potential or established Aboriginal and Treaty rights cannot be sufficiently mitigated or compensated, as  it would be difficult if not impossible to make such a determination before even studying what those impacts are.

The energy industry, however, has its own definition of accommodation, which focuses on simply sharing information and possibly providing compensation. According to their Canadian Energy Strategy Framework document:

“It is clear that “consultation and accommodation” of the Aboriginal community is an important legal principle to uphold. This accommodation legitimately includes securing environmental protection, offering tangible benefits through economic participation, and meeting Aboriginal social goals through employment opportunities. Major energy projects need to present a clear and compelling value proposition to Aboriginal communities as one of their key qualifying criteria.

“However, it is important to recognize that the duty to consult with the Aboriginal community is about fulfilling the Crown’s fiduciary responsibility to inform Aboriginals about activities that may impact their rights, while providing them with the opportunity to provide input on proposed activities. Courts have repeatedly recognized that there is also a corresponding obligation on Aboriginal groups claiming Aboriginal or treaty rights to act reasonably and participate in the consultation process.

 “If this consultation process identifies significant potential impacts on Aboriginal rights, then the Crown may have to justify that infringement and accommodate/compensate the Aboriginals for that impact. However, absent these types of impacts, the duty to consult boils down to an information sharing requirement between the proponent or government and the Aboriginal group” (p. 55). 

The report also includes an even more revealing perspective on how the energy industry thinks about Aboriginal consultation and accommodation:

"Rightly or wrongly, some Aboriginal groups have been viewed as using this uncertainty around Aboriginal consultation duties to derail the regulatory process for projects until their particular demands are met and using this leverage to extract financial settlements that are not necessarily tied to or commensurate with the project being proposed” (p. 54).

Trying to diminish Aboriginal rights in this way is only going to increase opposition. Adding fuel to that fire, the industry is perhaps being a little too quick to celebrate their success in gutting Canada’s environmental laws when they write:

“In July 2011, [our] recommendations were presented to the Energy and Mines Ministers’ Conference in Kananaskis, Alberta. While all recommendations were presented as a work in progress, some were so compelling that they were accepted and acted upon. Notably, the Honourable Joe Oliver, Minister of Natural Resources, announced significant improvements to the country’s regulatory framework, much of which was reflective of our regulatory document and recommendations” (p. 11 of the Framework document).

We really can’t afford any more such “improvements”, if we are serious about protecting our environment for future generations and respecting First Nations’ constitutional  rights. 

Many Canadians agree. In B.C., the recent Defend Our Coast rallies brought out thousands of people to the lawn of the legislature and in seventy communities around to province to support a clean environment and First Nations rights against tar sands pipelines and tankers proposals.

In Alberta, more than fifty human rights and environmental organizations have expressed their support for the Athabasca Chipewyan First Nation's opposition to Shell's proposed new tar sands mines on their land. 

And we're just getting started.