Formalizing Expectations: The Duty to Consult and the Canadian Extractive Resource Sector

Abstract

Recent news events surrounding natural resource development, such as protests by Aboriginal groups to hydraulic fracturing in New Brunswick, have brought to light the longstanding difficulties of reconciling Aboriginal rights with the greater Canadian public interest. Despite the undertaking of consultation policy and ancillary guidelines, Aboriginal groups, extractive industry proponents, and the Crown often find themselves embroiled in legal disputes over the expectations and responsibilities associated with natural resource development consultation. Ambiguities caused by policymaking direction from the Supreme Court have led to an inefficient allocation of time and resources by all parties involved in consultation processes, leading to a proliferation of legal challenges, a degradation of social license, increased costs associated with project delays, and a significant reduction in the competitiveness of Alberta’s extractive industry. To address inadequacies in current consultation policy, it is recommended that the provinces take a more proactive role in creating strong, detailed consultations policies that include strict deadlines and accountability measures. Though it will be made clear that the duty to fulfill the honour of the Crown in consultation matters rests solely with the government, it will also be recommended that the government continue to delegate procedural aspects of consultation to industry proponents on a project-specific basis. By formally divorcing the reconciliatory duty of the Crown from industry’s procedural obligations with strong provincial policy direction, the risks associated with current consultation uncertainty can be mitigated. These recommendations will be substantiated by referencing work completed by Douglas Eyford in his recent report to the federal government on forging partnerships and building relations with Aboriginal people in Canada in the context of natural resource development.