Una Jefferson: Can you start by providing some context for those who might be unfamiliar on what the duty to consult is?
Kate Kempton: First Nations have the right to co-manage and co-decide on how shared land, which is almost all of Canada, and resources are to be used. The duty to consult and accommodate needs to be interpreted in a broad and robust way or significant conflicts would continue to arise. That means if it’s not exactly consent, it’s as close to that as you can possibly get. The proponents and the crown need to recognize that first nations will still take the position that their consent is required even though we know it’s not required under Canadian law.
Una Jefferson: We’ve seen a lot of legislation in Canada incorporate language about indigenous consultation, but this duty does lie above the level of legislation. I know you were involved in this quite famous case where Kitchenuhmaykoosib Inninuwug first nation from northern Ontario obtained a temporary injunction against exploration activity by Platinex even though Ontario’s mining act at the time contained no requirements for indigenous consultation. This of course changed shortly after the case concluded. So what is the role that consultation requirements in legislation play?
Kate Kempton: That’s correct. The duty to consult and accommodate lies upstream of legislation and regulations in the supreme law of Canada as a constitutional right and duty. That means that it applies no matter what legislation and regulations say. Knowing that many provinces and the federal government have tried to make legislation on it, embedding the right in the legislation, but the right applies regardless of the legislation.
Una Jefferson: To what extent can the crown, who really holds this duty, delegate the duty to consult to project proponents like someone doing mining exploration or trying to build a pipeline.
Kate Kempton: The Canadian law says that it’s the crown’s duty, which means the provincial governments or the federal government’s duty legally to consult and accommodate or ensure that it’s met. The latter is where proponents come in i.e the crown may delegate procedural aspects of the duty to consult and accommodate to proponents. If the first nation is not satisfied with how the proponent is engaging with them, then the crown has to step in at the behest of the first nation to make the proponent do better or the crown has to fill the gaps by doing better itself. And virtually every case that I have been involved in, the vast majority of the engagement is directly between the proponent and the first nations.
Una Jefferson: Can you give more concrete examples of what accommodation actually looks like in practice? You were involved recently in an interesting case where the first nations from northern Ontario were challenging the ability of Transcanada to dig to maintain existing pipeline infrastructure that was on their territories. In this case the pipeline had been there before the Canadian legal system started to give priority to the duty to consult and accommodate. In this case, what would accommodation look like from Transcanada?
Kate Kempton: There are always three kinds of accommodation required and in many cases four. The first is the requirement to prevent impacts. If you can outright prevent certain types of impacts on first nations and their rights and interests by moving the entire location of a project then you should do that to the extent reasonably feasible. The second kind is for those impacts that cannot be fully prevented, they should be mitigated or minimized. And then the third kind of accommodation is compensation, which doesn’t necessarily have to be monetary, but often is, given that there are virtually always leftover or residual impacts. In any case where there’s any revenue to be earned by the crown or proponent out of the permit or project being proposed, the fourth kind of accommodation measure is sharing in the positive upside benefits of project.
Una Jefferson: Another aspect of the consultation process relates to providing resources to allow indigenous peoples to be consulted effectively. This can be quite a time consuming process and can require educational resources, travel, and research. Whose responsibility is it to provide this resourcing?
Kate Kempton: There’s no case that explicitly says that the Supreme Court level funding must always be provided to cover the first nations cost to participate in consultation and accommodation. There are requirements though that consultation be in good faith, meaningful, and address the concerns of the affected first nation. The crown ultimately has to pay or ensure that payment is made sufficient for the first nation to participate in an informed and meaningful way. This may often involve hiring external expertise because first nations have been so deprived that they often don’t have the required internal expertise, advisors, or consultants. The proponent is expected to facilitate the meeting of the duty, especially where asked by the crown. If the proponent fails to provide sufficient funding as requested or delegated by the crown, it does so at its own risk.
Una Jefferson: I want to finish by asking some examples of proponents who have done the consultation and accommodation really well.
Kate Kempton: There are many. The more progressive mining companies or energy companies are engaging with first nations right from the outset and not questioning that it is in the proponents best interest to actually achieve consent from the first nations. So proponents that willingly come to the table with real resources, real money and real respect are much further ahead for themselves because they will be rewarded. There are occasions when first nations can’t agree to project because it’s on sacred land or some other important reasons, but the vast majority of cases consent is ultimately achieved. And that’s money in the bank for proponents. You take that to your lenders and investors and financiers and say, listen, I have consent, which means the first nations can’t sue on the basis that the project is going to be built and operated. They can’t blockade or engage in other obstructive behavior that provides legal and financial certainty and security. It’s also a socially just and responsible thing to do and it also boosts the goodwill of corporations and thus the balance sheets. So it truly is a win-win scenario and proponents who are progressive will reach those benefits much faster than those that aren’t.