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INCREASING RISK OF SUFACE ACCESS FOR THE OIL AND GAS INDSUTRY
THE ROLE OF ABORIGINAL CONSULTATION
Petroleum Joint Venture Association Luncheon April 28, 2005
Sandy Carpenter
Fasken Martineau DuMoulin LLP
OVERVIEW
Summary of Current Law
Recent SCC Decisions
Upcoming Events
Implications and Challenges
Forecast
LAW PRE-HAIDA AND TAKU
Section 35 Constitution Act, 1982The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed
Aboriginal peoples include the Indian, Inuit and Métis peoples of Canada
LAW PRE-HAIDA AND TAKU
Sparrow (SCC 1990)Existing aboriginal rights are constitutionally protected under section 35
Aboriginal rights are not absolute – can be infringed by government
Government must be able to justify infringement
LAW PRE-HAIDA AND TAKU
Infringement AnalysisHas the aboriginal group established a section 35 right?
Will there be a “prima facie infringement”?Meaningful diminution
Can the infringement be “justified”?Priority, compensation, consultation and accommodation
LAW PRE-HAIDA AND TAKU
Badger (SCC 1996)Alberta Treaty 8 hunting case
Existing Treaty rights are constitutionally protected
Government must also justify infringement of treaty rights
Subject to Mikisew (FCA 2004) “taking up” of lands (?)
LAW PRE-HAIDA AND TAKU
Delgamuukw (SCC 1997)Aboriginal title exists where proof of exclusive use and occupation
Aboriginal title has an economic component
Government must justify infringement of aboriginal title – Sparrow test applies
Consent may be required
LAW PRE-HAIDA AND TAKU
Powley (SCC 2003)Métis are aboriginal people – section 35(2)
Métis rights are constitutionally protected
Government must also justify infringement
Distinct formula for determining rights
LAW PRE-HAIDA AND TAKU
Consequences of Failure to Satisfy Obligations
Crown obligation, but …
Industry bears primary consequencesTaku – quashing of project certificate
Mikisew Cree (trial level) – quashing of road construction permit
Halfway River – quashing of cutting permit …
HAIDA AND TAKU
Taku River/Haida (BCCA 2002)Consultation required whenever reasonable prospect that government actions may infringe aboriginal rights arising out of the Crown’s fiduciary duty
No previous recognition of aboriginal rights required (Taku)
Imposed a legal duty to consult on industry (Haida)
HAIDA AND TAKU (SCC)
Haida v. B.C. (Overview)Source of duty
When duty arises
Scope and content
Whether extends to third parties
HAIDA AND TAKU (SCC)
Haida v. B.C. (Source of Duty)Applies to Crown conduct
Grounded in the honour of the Crown
Necessary to achieve reconciliation
Assertion insufficient to give rise to fiduciary duty but may require consultation and accommodation
HAIDA AND TAKU (SCC)
Haida v. B.C. (When Arises)Obligation arises (1) when the Crown has knowledge of the potential existence of rights (credible but unproven claim) and (2) contemplates conduct that might adversely affect them
May be early in resource allocation
Crown may continue to manage resource pending resolution of claim
HAIDA AND TAKU (SCC)Haida v. B.C. (Scope and Content – Consultation)
Distinction between knowledge sufficient to trigger duty and the scope of the duty
Content of the duty varies with the strength of the claim and the seriousness of the potential impact – spectrum
“Consult and, if appropriate, accommodate”
(Cont’d)
HAIDA AND TAKU (SCC)Haida v. B.C. (Scope and Content – Consultation – cont’d)At all stages “good faith” is required
Continuing dutyThe intention of substantially addressing aboriginal
concerns as they are raised, through a meaningful process
First Nations must define right and alleged infringement with clarity
May “delegate” procedural aspects to industry but not the legal liability itself
HAIDA AND TAKU (SCC)Haida v. B.C. (Scope and Content – Accommodation)
Consultation may lead to accommodation (a level of responsiveness to First Nation concerns)
Requires good prima facie case and significant adverse impacts
(Cont’d)
HAIDA AND TAKU (SCC)Haida v. B.C. (Scope and Content – Accommodation – cont’d)
Avoid irreparable harm or minimize effects of infringement pending resolution of the final claim
Does not require agreement
No sharp dealing, but hard bargaining permitted
May establish “regulatory” schemes to discharge
HAIDA AND TAKU (SCC)
Haida v. B.C. (Whether Extends to Industry)
No independent duty on industry
Crown may “delegate” procedural aspects of consultation to industry, but cannot delegate the duty itself
Industry may still be liable if other wrongs
HAIDA AND TAKU (SCC)
Taku v. B.C.Followed Haida
Acceptance in BC Treaty process indicated prima facie claim of title
Had also demonstrated prima facie case for exercise of aboriginal rights in area
Proposed road had potential to cause a serious infringement on rights and title
HAIDA AND TAKU (SCC)
Taku v. B.C. (cont’d)Environmental assessment process provided consultation
Through that process changes were made to accommodate the Taku’s interests
No need for separate process (but voluntary participation)
Restored Project Approval Certificate issued under BC environmental assessment process
UPCOMING EVENTSMikisew Cree First Nation v. Minister of Canadian Heritage (FCA 2004)
“And Her Majesty the Queen hereby agrees with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes”
(Treaty 8 – 1899)
IMPLICATIONS AND CHALLENGESHaida decision is balanced, no radical shift
Likely to require earlier consultation
Greater focus on process
Broader scope of matters requiring consultation (activity-based permits plus tenure)
Uncertain application in treaty context pending SCC decision in Mikisew
IMPLICATIONS AND CHALLENGES
Crown (BC)Clarification of duty.
Duty arises early in the process – may be at “strategic” rather than “operational” level
Greater need for documentation (or “post-consultation” communication)
Court’s suggestion to set up a regulatory scheme
IMPLICATIONS AND CHALLENGES
First NationsMust outline claims with clarity, focusing on the scope and nature of the rights and on the alleged infringements
Must consult in good faith
Cannot attempt to frustrate Crown’s attempt to consult
No “veto”
IMPLICATIONS AND CHALLENGES
IndustryIn industry’s interests to ensure that Crown observes its obligations
Distinction between government and industry (delegation)
Need to fully document efforts and provide information to government
Accommodation offers
FORECAST
Mikisew Cree (SCC)
“Consultation” litigationIncrease in frequency
Involvement of broader range of government agencies
Focus on earlier stages of process
Rights-based practices
Fasken Martineau DuMoulin LLP
Barristers and Solicitors
Patent and Trade-mark Agents
3400 First Canadian Centre
350 – 7th Avenue SW
Calgary, Alberta T2P 3N9
Phone: (403) 261-5350
Fax: (403) 261-5351
Sandy Carpenter
(403) 261-5365
Peter Feldberg
(403) 261-5364
