Weaponizing the duty to consult: Old Harry

I want to tell you about a particularly disturbing development going on right now in Innu, Maliseet, and Mi’gmaq territory, but first I think we need to cover some important ground.

What is the duty to consult?

In Canada, the duty to consult (a constitutional obligation) is triggered when the Crown (the federal or provincial government) contemplates actions or decisions that may affect Aboriginal rights.

You won’t find the duty to consult clearly explained in the Constitution. It has been read into section 35 by a number of court cases.[1] Linked to consultation is the duty to accommodate, but knowing exactly what consultation and accommodation mean in any given situation is tricky. It really depends on the level of potential adverse impact, and on the strength of an Aboriginal right. Of course, these factors are judged not by Indigenous peoples themselves, but rather by the Crown, or the Court (if the matter ends up being litigated).

The duty to consult is rooted in something called “the honour of the Crown”, which requires the Crown to deal “honourably” with Indigenous peoples in order to prevent unjustified infringements of Aboriginal rights. Again, it is not Indigenous peoples who determine whether or not the Crown is behaving honourably. Since the honour of the Crown is a sort of self-imposed limit, it is not really an Aboriginal right.

Making things even trickier, the duty to consult is often delegated to lower administrative bodies/jurisdictions, such as regulators and industry representatives. The honour of the Crown itself can’t be delegated, just the procedural aspects of consultation and accommodation. It’s still up to the Crown to behave honourably, even if they aren’t really involved in the consultation process.

While there are some guidelines developed through case law, we don’t really know how consultation is supposed to go for absolutely sure, unless and until something goes wrong and the issue goes before the court…which is always a strange and after-the-fact way to figure things out. However, in general the duty to consult is about making sure that there is some process to learn about how a proposed development is going to impact Aboriginal rights, and Indigenous peoples need to be a part of that process/discussion/consultation/accommodation.

Misusing the duty to consult

So what happens when this constitutional obligation toward Indigenous peoples is wielded as a way for administrative bodies to bend the rules?

Despite being labelled an oil and gas field, no one really knows yet if there are any hydrocarbons in this area, making this merely a “prospect” (a potentiality).

That is exactly what the Canada-Newfoundland and Labrador Offshore Petroleum Board (C-NLOPB) is using the duty to consult to accomplish.[2] In 2008, the C-NLOPB issued an offshore exploration license to Corridor Resources Inc. related to the Old Harry prospect. This license gives Corridor the exclusive right to explore a specific area in in the Gulf of St. Lawrence, the purpose of which is to ascertain the full extent of hydrocarbon deposits that could be exploited at a later date. The license is set to expire on January 14, 2017.

The Old Harry Prospect is within Innu, Maliseet, and Mi’gmaq territory. Atlantic Salmon migrate through the St. Lawrence on their way to the rivers of the Gaspé. In the eight years that Corridor has had their exploration license, no consultation with any of these First Nations has taken place. The Innu, Maliseet, and Mi’gmaq assert strong Aboriginal and Title rights claim to the area that would be impacted by drilling or exploiting the Old Harry prospect, and the project would have significant adverse impacts on those rights.  Both of these factors suggest that deep consultation is required in this situation. Nonetheless, C-NLOPB and Corridor have pled that they did not have time to engage in proper consultations, despite the fact that these First Nations made themselves available.

Normally in such a situation, the license issued to Corridor would simply expire, and the land would go back to the Crown. At a later date, a new license could, at the discretion of the C-NLOPB, be offered for bidding. First Nations in the area have been waiting for this expiry in order to advocate for a 12-year moratorium on further issuances of exploratory licenses in the Gulf of St. Lawrence. They want an independent body that would work with their Nations and the provinces to properly study the potential impact of developments in the region, as well as to engage in the deep consultations required.

What is happening instead, is that C-NLOPB, in contravention of the Accord Act[3] and the Provincial Act,[4] which allow no further extensions, have through legal sleight of hand, decided to extend Corridor’s license for an additional four years. They accomplish this by asking Corridor to forfeit its license, in exchange for a new one, without going through the bidding process. The main reason for this? The C-NLOPB need more time to fulfill the duty to consult!

The C-NLOPB had YEARS to consult with First Nations, and failed to do so. Invoking the duty to consult in order to, in effect bend the rules, (though of course they claim the way they are doing this is all on the up and up), is a gross misuse of a constitutional obligation that is meant to protect unjustified infringements of Aboriginal rights. The duty to consult is not a right that administrative bodies can invoke as a Hail Mary for not having engaged in the duty to consult in the first place!

What’s at stake?

Exploratory drilling in this area has the probability to be extremely disruptive to First Nations fisheries, and any subsequent oil or gas development brings the inherent risk of more disruption, as well as potentially catastrophic environmental effects in the event of an accident/spill. It is important to not underestimate the potential impact of even exploratory drilling; the largest marine oil spill in history, the Deepwater Horizon oil spill of 2010,  discharged 4.9 million barrels of oil into the Gulf of Mexico and came from an exploratory well in the Macondo prospect!

Also impacted are Aboriginal and Title rights, as well the relationship between First Nations and the Crown. The honour of the Crown is at stake here, and since it cannot be delegated, it is imperative that the Crown step in to address C-NLOPB’s misuse of the duty to consult.

The duty to consult is already considered by many Indigenous peoples to be inadequate, and too open to interpretation and abuse. Allowing regulators and industry to wield the duty to consult as a way to circumvent legal restrictions on their activities, is not a precedent that the federal or provincial governments should be comfortable with, and First Nations are certainly not going to let it happen without a fight.

Read more about the issues

A number of different organizations have submitted their objections to the proposed issuance of a new license for the Old Harry prospect. I am going to link to letters, and news pieces  here, which will give you more background on the issues, the arguments, and perhaps some people/groups to contact if you want to get involved.

“Don’t swap St. Lawrence oil license: First Nation, green groups“. iPolitics, Nov. 26, 2016.

Letter from Save Our Seas and Shores (SOSS) to the Minister of Natural Resources, September 28, 2016.

Letters from Innu and Mi’gmaq Nations in Quebec, New Brunswick, Nova Scotia, Prince Edward Island (dropbox link), Nov. 10 – Dec. 5, 2016.

[1] R. v Van der Peet, [1996] 2 SCR 507 at para 31; Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 186; Haida Nation v. British Columbia (Minister of Forests), [2004] SCC 73, 3 SCR 511 at paras 14, 18 and 20; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) [2005] SCC 69 at para 51.

[2]  Government of Canada, Public Works and Government Services Canada. “Canada Gazette – COMMISSIONS,” September 17, 2016. http://www.gazette.gc.ca/rp-pr/p1/2016/2016-09-17/html/commis-eng.php#cs4.

[3] Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, SC 1987, c 3, 2 69(2) [“Accord Act”].

[4] Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, RSNL 1990, c C-2, s 69(2) [“Provincial Act”].