tag:theconversation.com,2011:/us/topics/national-energy-board-41988/articlesNational Energy Board – The Conversation2018-10-11T21:58:16Ztag:theconversation.com,2011:article/1046842018-10-11T21:58:16Z2018-10-11T21:58:16ZHow post-truth politics is sinking debate on environmental assessment reform<figure><img src="https://images.theconversation.com/files/240312/original/file-20181011-154549-409o7e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Suncor's base plant with upgraders in the oil sands in Fort McMurray Alta., June 13, 2017. </span> <span class="attribution"><span class="source">(THE CANADIAN PRESS/Jason Franson)</span></span></figcaption></figure><p>The past few weeks have been characterized by a growing chorus of political and media voices, many from the West, decrying the Canadian government’s proposed environmental assessment legislation, Bill C-69.</p>
<p>The bill, known as the <a href="http://www.parl.ca/DocumentViewer/en/42-1/bill/C-69/first-reading">Impact Assessment Act</a>, is currently before the Senate. If adopted, the legislation would revise the rules for the review and approval of major projects such as mines, large hydroelectric projects and interprovincial energy infrastructure like pipelines and power lines. </p>
<p>The bill has been criticized by the Canada West Foundation, the federal Conservative opposition, the Alberta government, parts of the fossil fuel industry, as well as some columnists and <a href="https://www.theglobeandmail.com/opinion/editorials/article-globe-editorial-bill-c-69-kills-the-national-energy-board-but-keeps/">editorial boards</a>. In reading their commentary, one could come away with the impression the legislation proposes radical changes, to be recklessly imposed by a government ideologically opposed to the resource sector. </p>
<p>The reality of the bill’s contents is rather less dramatic. </p>
<h2>Marginal adjustments, not radical change</h2>
<p>Bill C-69 largely leaves the existing assessment and review process intact. That process was established in its current form by the <a href="https://www.theglobeandmail.com/news/politics/budget-bill-gives-harper-cabinet-free-hand-on-environmental-assessments/article4105864/">Harper government’s 2012 omnibus budget bills (Bills C-38 and C-45)</a>.</p>
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<span class="caption">About 100 people march in a demonstration in downtown Yellowknife in 2012. Idle No More organizers opposed the Harper government’s omnibus budget legislation, Bill C-45, and accused the Conservative government of trampling on treaty rights.</span>
<span class="attribution"><span class="source">(THE CANADIAN PRESS/Bill Braden)</span></span>
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<p>The proposed legislation would make some marginal adjustments to that regime. It would widen participation in federal review processes beyond those who are directly affected by projects, allowing members of the public to file comments on projects and participate in hearings even if the projects are not “in their backyards.” It strengthens the requirements for the federal government to explain how it has arrived at its decisions under the act. </p>
<p>Bill C-69 also renames the National Energy Board the Canadian Energy Regulator. Final say in decision-making remains with the federal cabinet, as it did under the Bill C-38 amendments. </p>
<p>Contrary to <a href="https://www.theglobeandmail.com/opinion/editorials/article-globe-editorial-bill-c-69-kills-the-national-energy-board-but-keeps/">some commentary</a>, the bill would actually widen the scope of the environmental assessment process. It would consider all effects of a major project, including economic, social, health and gender, both positive and negative, in addition to its environmental effects. </p>
<p>With respect to energy projects, the bill re-establishes some elements of the pre-2012 regime. For example, a commissioner from the newly formed Canadian Energy Regulator would participate in joint reviews with panelists that had relevant knowledge or experience. </p>
<p>And while acknowledging Indigenous rights, Bill C-69 does not come close to establishing the kinds of ongoing governance structures with Indigenous communities that would reflect federal and provincial governments’ commitments to implementing the <a href="https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html">United Nations Declaration on the Rights of Indigenous Peoples</a>.</p>
<h2>A shadow of what existed before 2012</h2>
<p>The resource sectors that are now criticizing Bill C-69 functioned successfully for decades under the pre-Harper review and assessment regime. An overwhelming majority of development projects, including the Canadian portion of the Keystone XL pipeline, were assessed and approved under the pre-2012 system. </p>
<p>The review process that would be established through Bill C-69 would remain a shadow of what existed before 2012. Prior to that date, several thousand federal environmental assessments were conducted <a href="http://www.oag-bvg.gc.ca/internet/English/parl_cesd_201410_04_e_39851.html">each year.</a>Yet there was no discernible negative economic impact of these requirements and there were substantial improvements in the quality and acceptance of the resulting decisions. Under Bill C-69, the new impact assessment process would likely remain limited to a few dozen major projects per year. </p>
<p>Completely absent from the critical commentary is any acknowledgement that the 2012 revisions to the federal review process are widely seen as an abject failure. Rather than facilitating the approval of energy projects, they have led to deeper political, social and legal conflicts than ever, as evidenced by the successful court challenges to the <a href="https://www.cbc.ca/news/canada/british-columbia/northern-gateway-pipeline-federal-court-of-appeal-1.3659561">Northern Gateway</a> and <a href="https://www.cbc.ca/news/politics/trans-mountain-federal-court-appeals-1.4804495">Kinder Morgan/Trans Mountain</a> pipelines.</p>
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Read more:
<a href="https://theconversation.com/no-quick-or-easy-resolution-to-the-trans-mountain-pipeline-question-103034">No quick or easy resolution to the Trans Mountain pipeline question</a>
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<p>The current regime fails to consider the broader implications of energy projects, such as whether Canada can meet its climate change commitments. Nor does it require any review for thousands of projects each year within federal jurisdiction that, cumulatively, contribute to significant environmental, health, social and economic impacts. </p>
<p>The attacks on Bill C-69 seem grounded in fundamental misunderstandings of the federal environmental assessment regime, past and present. Much of the accompanying rhetoric wildly exaggerates the bill’s likely effects on the existing processes and procedures. </p>
<h2>Environmental challenges remain</h2>
<p>Canada is facing numerous environmental challenges. According to a <a href="http://www.wwf.ca/about_us/lprc/">recent report</a> by the World Wildlife Fund Canada, half of the country’s monitored species (451 of 903) declined in abundance between 1970 and 2014. Half of those had an average decline of 83 per cent. </p>
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<img alt="" src="https://images.theconversation.com/files/240314/original/file-20181011-154567-11yqtq6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/240314/original/file-20181011-154567-11yqtq6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=293&fit=crop&dpr=1 600w, https://images.theconversation.com/files/240314/original/file-20181011-154567-11yqtq6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=293&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/240314/original/file-20181011-154567-11yqtq6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=293&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/240314/original/file-20181011-154567-11yqtq6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=368&fit=crop&dpr=1 754w, https://images.theconversation.com/files/240314/original/file-20181011-154567-11yqtq6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=368&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/240314/original/file-20181011-154567-11yqtq6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=368&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">In this 2015 photo, an orca whale breaches in view of Mount Baker, in the Salish Sea in the San Juan Islands, Wash.</span>
<span class="attribution"><span class="source">(AP Photo/Elaine Thompson, File)</span></span>
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<p>Marine wildlife is facing significant pressure on the Atlantic and Pacific coasts, with a record number of <a href="https://www.sciencemag.org/news/2017/08/endangered-right-whales-are-dying-record-numbers-canada-raising-alarm">right whale deaths</a> in the Gulf of St. Lawrence in 2017 and <a href="https://www.cbc.ca/news/canada/british-columbia/low-orca-birth-rates-linked-to-lack-of-chinook-salmon-1.4183609">declining birth rates</a> among southern resident orcas in British Columbia’s coastal waters. </p>
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Read more:
<a href="https://theconversation.com/new-fishing-rules-aim-to-protect-gulf-of-st-lawrence-right-whales-96158">New fishing rules aim to protect Gulf of St. Lawrence right whales</a>
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<p>In May, the <a href="https://www.conferenceboard.ca/press/speech_oped/2018/05/17/the-costs-of-climate-change-are-rising">Conference Board of Canada reported</a> that natural catastrophes are costing Canadian insurers roughly a billion dollars annually. This was before wildfires struck B.C. and Ontario this summer, and tornadoes set down in Québec and Ontario in September.</p>
<h2>Not the end of the world</h2>
<p>While the Impact Assessment Act is not perfect, it attempts to deal with some of these challenges at a more systemic level. The bill reflects the results of over two years of extensive engagement. </p>
<p><a href="https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/building-common-ground.html">Two</a> expert <a href="https://www.nrcan.gc.ca/19667">panels</a> travelled across Canada and published comprehensive reports. The House of Commons committee studying the bill heard testimony from <a href="https://www.nrcan.gc.ca/19667">more than 100 witnesses</a>. The bill now before the Senate represents incremental — not radical — changes to the regime that now exists. </p>
<p>The ugly face of post-truth politics is now becoming deeply embedded in political discourses in the United States. Canada needs to avoid the same path. </p>
<p>A calmer and better-informed debate over the details of Bill C-69 and their implications would be a good place to start.</p><img src="https://counter.theconversation.com/content/104684/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Winfield receives funding from the Social Sciences and Humanities Research Council of Canada, and Natural Science and Engineering Research Council of Canada, and the George Cedric Metcalf Foundation.</span></em></p><p class="fine-print"><em><span>Deborah Curran is affiliated with the Environmental Law Centre. </span></em></p><p class="fine-print"><em><span>Martin Olszynski received funding from the Canadian Environmental Assessment Agency.</span></em></p>Canada’s proposed new environmental assessment law is facing heated, if not necessarily well-informed, opposition. The real question is whether it goes far enough.Mark Winfield, Professor of Environmental Studies, York University, CanadaDeborah Curran, Associate Professor, Faculty of Law and School of Environmental Studies, University of VictoriaMartin Olszynski, Associate Professor, University of CalgaryLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1030342018-09-13T21:24:55Z2018-09-13T21:24:55ZNo quick or easy resolution to the Trans Mountain pipeline question<figure><img src="https://images.theconversation.com/files/236296/original/file-20180913-177968-a1ax4v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People hold artwork of various marine life and youth during a rally celebrating a recent federal court ruling against the Kinder Morgan Trans Mountain pipeline expansion, in Vancouver, on Sept. 8, 2018.</span> <span class="attribution"><span class="source">(THE CANADIAN PRESS/Darryl Dyck)</span></span></figcaption></figure><p>The <a href="https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/343511/index.do#_Did_the_Board_5">decision</a> by the Federal Court of Appeal against the Trans Mountain pipeline expansion seems to have come as a shock to the federal and Alberta governments. </p>
<p>In response, the <a href="https://calgaryherald.com/news/local-news/notley-wants-bold-action-from-trudeau-to-get-transmountain-back-on-track">Alberta government</a>, the <a href="https://globalnews.ca/video/4426089/conservatives-call-on-trudeau-to-put-forward-concrete-plan-to-fix-trans-mountain">federal Conservative opposition</a> and others demanded the Trudeau government take immediate action to get “shovels back in the ground.”</p>
<p>In reality, the Federal Court’s decision leaves the Trudeau government with few easy ways forward. </p>
<p>In its decision, the court highlighted the extent to which its conclusions were grounded in “largely uncontested legal principles” in Canadian law. The federal government may seek leave to appeal the decision to the Supreme Court of Canada, but an appeal <a href="https://www.cbc.ca/news/canada/british-columbia/trans-mountain-pipeline-appeal-court-ruling-1.4802973">could easily take more than a year to resolve</a>. </p>
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Read more:
<a href="https://theconversation.com/trans-mountain-ruling-victory-for-environmentalists-but-a-setback-for-action-on-climate-change-102468">Trans Mountain ruling: Victory for environmentalists, but a setback for action on climate change</a>
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<p>It is also entirely possible, given the clear grounding of the Federal Court’s decision in principles established by the Supreme Court of Canada itself, that the Supreme Court could uphold the Federal Court’s decision, or even strengthen it.</p>
<h2>Not quick or easy</h2>
<p>The Federal Court of Appeal’s decision rested on two key elements: the federal government’s failure to undertake adequate consultation with Indigenous peoples potentially affected by the project, and the National Energy Board’s (NEB) decision to exclude the environmental impacts of increased shipping activity from the project in its review and recommendations to the federal cabinet. </p>
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<img alt="" src="https://images.theconversation.com/files/236297/original/file-20180913-177935-15hioxo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/236297/original/file-20180913-177935-15hioxo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/236297/original/file-20180913-177935-15hioxo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/236297/original/file-20180913-177935-15hioxo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/236297/original/file-20180913-177935-15hioxo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=485&fit=crop&dpr=1 754w, https://images.theconversation.com/files/236297/original/file-20180913-177935-15hioxo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=485&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/236297/original/file-20180913-177935-15hioxo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=485&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">James Maloney, chair of the House of Commons Natural Resources committee, prepares to take his seat for a special meeting on Parliament Hill in Ottawa on Sept. 4, 2018.</span>
<span class="attribution"><span class="source">(THE CANADIAN PRESS/Adrian Wyld)</span></span>
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<p><a href="http://policyoptions.irpp.org/magazines/september-2018/getting-trans-mountain-expansion-back-on-track/">Contrary to what some have suggested</a>, neither issue lends itself to a quick or easy resolution. </p>
<p>The right of Indigenous peoples to consultation is grounded in Section 35 of the Constitution Act and cannot be overridden through legislation. </p>
<p>Addressing the Federal Court’s objections will require meaningful and substantive engagement with First Nations and Indigenous peoples affected by the project. Such engagement will take time. </p>
<p>Finding appropriate accommodations with those communities will be difficult given the <a href="https://www.nationalobserver.com/2018/05/02/news/chiefs-133-first-nations-join-fight-against-kinder-morgan-pipeline-and-oilsands">fundamental objections that many</a> hold against the project. </p>
<p>Further litigation is almost certain in response to any decision to proceed with the project in these circumstances. </p>
<h2>Tanker traffic</h2>
<p>The resolution of the second issue may be almost as challenging, but in different ways. </p>
<p>The federal government could choose the option implied by <a href="https://www.thestar.com/edmonton/2018/08/30/premier-rachel-notley-to-address-media-after-court-ruling-puts-trans-mountain-on-hold.html">Alberta Premier Rachel Notley</a> and others to use legislation to remove the question of marine traffic impacts from the review. </p>
<p>Such an option would, of course, make a mockery of the Trudeau government’s promises to reform the federal environmental assessment process and protect the maritime environment. </p>
<p>As highlighted by the Federal Court in its decision, it would also likely require amendments to the federal Species at Risk Act to remove protections for affected species, notably the iconic population of southern resident orcas.</p>
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<span class="caption">Khelsilem (Dustin Rivers), right, elected councillor and spokesperson for Squamish Nation, embraces Tsleil-Waututh Nation councillor Charlene Aleck in celebration, during a news conference in Vancouver, on Aug. 30, 2018.</span>
<span class="attribution"><span class="source">(THE CANADIAN PRESS/Darryl Dyck)</span></span>
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<p>In its initial review, the NEB itself identified “significant” risks to the marine environment and wildlife flowing from the growth in tanker traffic, but it didn’t include these risks in its final review.</p>
<p>If the NEB does go back and include the risks of increased tanker traffic in its report, it will likely lead to the very conclusion it sought to avoid.</p>
<p>Recognizing these risks would put the Trudeau government in the position of having to make a direct choice between environmental protection and economic development, something it has always sought to avoid.</p>
<h2>Climate strategy</h2>
<p>With respect to the federal government’s overall climate change strategy, Notley’s <a href="https://www.thestar.com/edmonton/2018/08/30/premier-rachel-notley-to-address-media-after-court-ruling-puts-trans-mountain-on-hold.html">statement of her intent to withdraw</a> from the <a href="https://www.canada.ca/en/services/environment/weather/climatechange/pan-canadian-framework.html">Pan-Canadian Framework on Climate Change</a> has brought already emerging issues to the forefront. </p>
<p>Recent provincial leadership changes have introduced new officials, <a href="https://www.theguardian.com/world/2018/jul/03/doug-ford-scraps-carbon-tax-plan-and-sets-up-climate-fight-with-trudeau">notably Ontario Premier Doug Ford</a>, who want no part in Trudeau’s national climate change strategy. </p>
<p>How the federal Liberals will respond to these developments remains uncertain. </p>
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Read more:
<a href="https://theconversation.com/canadas-paris-pipeline-paradox-97636">Canada's Paris-pipeline paradox</a>
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<p>Trudeau’s electoral success in 2015 hinged, in large part, on his ability to consolidate the moderate and progressive voters around the federal Liberal party. Holding that coalition together will require the Liberals to maintain some degree of environmental credibility, especially in British Columbia, Québec and Ontario. The Liberals may yet carry through on their federal carbon pricing initiative, regardless of provincial objections. </p>
<p>The Trans Mountain decision has brought a series of legal, political and environmental issues to a head. The Trudeau government has little time to reveal its strategy for reconciling its environmental and economic priorities. But the path it takes will influence the outcome of the 2019 federal election — and Canada’s ability to meet its international environmental obligations.</p><img src="https://counter.theconversation.com/content/103034/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Winfield receives research funding from Social Sciences and Humanities Research Council, Natural Sciences and Engineering Research Council, the George Cedric Metcalf Foundation, and the Ontario IESO, </span></em></p>Contrary to what some have suggested, the uncertainty over the Trans Mountain pipeline expansion will be drawn out.Mark Winfield, Professor of Environmental Studies, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/825622017-08-22T23:27:46Z2017-08-22T23:27:46ZLessons from Supreme Court decisions on Indigenous consultation<p>In July, the Supreme Court of Canada released two major decisions on the Crown’s duty to consult and accommodate Indigenous peoples. Those decisions provide important guidance that can help to ensure Indigenous peoples’ constitutional rights are better recognized and respected moving forward.</p>
<p>The principles set out in the two Supreme Court cases – <a href="http://www.canlii.org/en/ca/scc/doc/2017/2017scc40/2017scc40.html">Clyde River (Hamlet) v. Petroleum Geo-Services Inc.</a> and <a href="http://www.canlii.org/en/ca/scc/doc/2017/2017scc40/2017scc40.html">Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.</a> – will help define what adequate consultation and accommodation now requires, and the responsibilities of various government decision-makers in fulfilling and evaluating whether the duty to consult has been met.</p>
<p>Let’s be clear: the Clyde River and Chippewas decisions are not a cure-all for Indigenous peoples’ struggle to have their constitutional rights respected in regulatory decision-making. But if the lessons from these Supreme Court decisions are heeded, they will help advance that struggle. </p>
<p>Both Supreme Court decisions involved the review of project approvals by the National Energy Board (NEB). In Clyde River, the Supreme Court overturned an NEB order authorizing seismic testing for oil and gas deposits in the waters off the coast of Baffin Island, where the Inuit of Clyde River have a treaty right to hunt and harvest marine mammals. </p>
<p>In Chippewas, the NEB approved an application to modify Enbridge’s Line 9 pipeline, which crosses the traditional territory of the Chippewas, by reversing the flow of part of the pipeline, increasing its capacity and enabling it to carry heavy crude oil. The Supreme Court dismissed the Chippewas’ legal challenge to stop the project. </p>
<h2>Guidance on what “deep consultation” requires</h2>
<p>Although the Clyde River and Chippewas rulings both specifically concerned the NEB’s actions, their consequences extend more broadly to every kind of government decision-making or regulatory approval process.</p>
<p>Part of the importance of the Clyde River decision stems from the fact that it is the first Supreme Court case to consider whether a regulatory process meets a duty of consultation at the “deep” end of the consultation spectrum described in <a href="http://www.canlii.org/en/ca/scc/doc/2004/2004scc73/2004scc73.html">Haida Nation v. British Columbia</a> — that is, where the Indigenous peoples’ claim to the right is strong (e.g. treaty rights) and the potential harm to that right is severe (e.g. irreparable harm to marine mammals).</p>
<p>Given this duty of deep consultation, the court concluded that the process in Clyde River was “significantly flawed” for several reasons, among them the fact that although the NEB considered the environmental effects of the proposed seismic testing, it <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc40/2017scc40.html#par45">failed to take into account the impact of that testing on the Inuit’s treaty rights</a>.<br>
As the court put it, the Inuit’s rights were “<a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc40/2017scc40.html#par51">an afterthought to the assessment of environmental concerns</a>.” </p>
<p>Second, <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc40/2017scc40.html#par46">the Crown failed to make clear that it was relying on the NEB’s process</a> to fulfil its duty to consult in Clyde River, and failed to explain the significance of that process to the Inuit.</p>
<p>Further, there were no oral hearings. No funding to the Inuit of Clyde River. No written explanations of how the Inuit’s rights were considered. No meaningful ability to submit scientific evidence, and no ability to test the project proponents’ scientific evidence. </p>
<p>It is noteworthy that the Court <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc40/2017scc40.html#par48">cited</a> and re-affirmed the process in the 2004 <a href="http://www.canlii.org/en/ca/scc/doc/2004/2004scc74/2004scc74.html?autocompleteStr=taku%2520&autocompletePos=1">Taku River Tlingit First Nation v. British Columbia</a> — a case where the affected Indigenous groups not only received what’s known as participant funding, but participated as part of the committee that was the driving force in the assessment process.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/182294/original/file-20170816-32614-1vu0nya.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/182294/original/file-20170816-32614-1vu0nya.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=775&fit=crop&dpr=1 600w, https://images.theconversation.com/files/182294/original/file-20170816-32614-1vu0nya.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=775&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/182294/original/file-20170816-32614-1vu0nya.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=775&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/182294/original/file-20170816-32614-1vu0nya.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=973&fit=crop&dpr=1 754w, https://images.theconversation.com/files/182294/original/file-20170816-32614-1vu0nya.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=973&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/182294/original/file-20170816-32614-1vu0nya.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=973&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former B.C. Premier Christy Clark is framed by dancers after she signed a historic agreement with Taku River Tlingit in July 2011 that created 13 newly protected areas in more than three million hectares of the Atlin Taku region in northwestern B.C.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Jonathan Hayward</span></span>
</figcaption>
</figure>
<p>In a strong signal of the kind of process that may now be necessary in these cases, the Supreme Court ruled in its Clyde River decision that “<a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc40/2017scc40.html#par47">procedural protections characteristic of an adversarial process… may be required for meaningful consultation</a>.”</p>
<p>While it’s clear all future cases will be assessed on their own unique facts, the Supreme Court is making clear it takes a far more robust view of consultation than some lower courts across the country. </p>
<p>So what are the key practical lessons for Indigenous consultation, following these landmark rulings?</p>
<h2>1. Participant funding</h2>
<p>One major point of distinction between Clyde River and Chippewas was that the appellants in Chippewas case received participant funding from the NEB, while the Clyde River appellants did not. Without that funding, the Inuit were unable to retain counsel or properly address the scientific evidence on seismic testing — and this was one reason that the consultation in Clyde River was found to be inadequate.</p>
<p>Indigenous groups impacted by resource projects should always request participant funding in order to ensure their interests are properly represented in the regulatory approvals process. </p>
<p>The need for funding is even more acute if the case requires putting forward complex scientific or expert evidence. Even if such requests for funding are ultimately unsuccessful, the fact that they were made strengthens the record for an appeal or judicial review.</p>
<h2>2. Understanding and designing the consultation process</h2>
<p>The court’s decision to single out Taku River as an example of adequate consultation is an important reminder that Indigenous groups can — and should — demand a greater say in actually designing or driving the consultation process.</p>
<p>The court’s decisions in Clyde River and Chippewas also required the Crown to determine whether an existing regulatory process meets its duty to consult and accommodate. Nailing down what is being offered as consultation will allow for Indigenous peoples to make more educated decisions about whether to participate in that process, and what kinds of requests may be made in terms of additional consultation efforts.</p>
<p>Indigenous peoples should go on record with any demands for additional consultation or accommodation, and make them known as early as possible. The court has provided a <a href="https://www.canlii.org/en/ca/scc/doc/2017/2017scc40/2017scc40.html#par22">list</a> of potential ways that the Crown can improve the consultation process, including making legislative or regulatory amendments, and/or making submissions to the decision-making body. </p>
<h2>3. Participate, but make objections & concerns known</h2>
<p>Demand a better regulatory process while participating in that same process. Now that bodies like the NEB must also assess the adequacy of consultation and accommodation, it’s critical for affected Indigenous groups to communicate any concerns on these issues to the regulatory agency or tribunal and to avoid raising them for the first time on appeal or judicial review.</p>
<p>At a more fundamental level, for the promise of the Clyde River decision to be fulfilled the regulatory process must function in a fair manner that fully respects Indigenous rights. At the moment, it does not. Indeed, there is a widespread acknowledgment — among Indigenous leaders, environmentalists and the government itself — that the current NEB and Environmental Assessment (EA) processes are broken. </p>
<p>The federal government commissioned two expert panels to recommend changes to the <a href="https://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/pdf/NEB-Modernization-Report-EN-WebReady.pdf">NEB</a> and <a href="https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/building-common-ground.html">EA</a> processes. Those expert panels have recommended overhauling these processes and replacing them with a regulatory process that fully takes into account Indigenous rights and incorporates the principle of free, prior and informed consent. </p>
<p>Indigenous peoples now have the opportunity to familiarize themselves with those recommendations and demand meaningful reform.</p><img src="https://counter.theconversation.com/content/82562/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nader R. Hasan and Justin Safayeni represented the appellants in the Clyde River case before the Supreme Court of Canada.</span></em></p>The Supreme Court of Canada’s recent decisions on Clyde River and Chippewas contain key lessons to ensure that Indigenous rights are recognized and respected in the future.Justin Safayeni, Adjunct Professor in Administrative Law, York University, CanadaNader R. Hasan, Adjunct professor, U of T Faculty of Law, University of TorontoLicensed as Creative Commons – attribution, no derivatives.