Duty to consult? Fine. But how? And with whom?

Open this photo in gallery:

Perhaps Coastal GasLink imagined, when it obtained an injunction from a British Columbia Supreme Court judge in December ordering members of the Wet’suwet’en Nation to cease blocking construction of its planned natural gas pipeline across the province’s north, that construction would then resume.

But then, the company might have thought the same the previous December, when it obtained a similar injunction – just as it might earlier have thought it sufficed to obtain the necessary regulatory approvals from, among others, the B.C. Environmental Assessment Office and the B.C. Oil and Gas Commission.

Perhaps not: the company would not be so naive as to think that merely following the procedures laid out in law and winning the repeated endorsement of lawful authority would be enough. But having spent years consulting local First Nations, and having obtained the consent of all 20 First Nations band councils whose territory the pipeline traverses, including the six Wet’suwet’en bands (one later recanted), it must surely have thought the project was well on its way.

But that was to reckon without the complexities of Indigenous governance, which in the case of the Wet’suwet’en include not just the elected band councils but hereditary chiefs as well – eight of nine oppose the project. The hereditary chiefs insist that the authority of the band councils applies only on reserve, whereas their authority extends to the rest of the Wet’suwet’en’s traditional territory.

And so, while RCMP officers gingerly attempt to enforce the court order – six weeks after it was issued – protesters across Canada have halted trains, occupied cabinet minister’s offices, and blockaded ports, ostensibly in the name of the rights of First Nations, but in fact in the service of one faction of one nation: the ones, a minority it appears, opposed to the project, versus the majority in favour.

This is hardly the only point of contention, or confusion, over natural resource projects, where constitutionally guaranteed Indigenous rights come into conflict with constitutional government. On Feb. 4, a Federal Court of Appeal panel unanimously dismissed a suit by four First Nations challenging the Trans Mountain pipeline project on the grounds that, two previous rounds of court-mandated consultation notwithstanding, they had been insufficiently consulted.

Here again, Indigenous groups are divided: more than 100 First Nations along the pipeline route either support or have expressed no opposition to it. But the confusion is compounded by the uncertainties surrounding the law on consultation. The courts have been emphatic on two points: first, that “the honour of the Crown” requires governments to consult with, and where possible, accommodate Indigenous groups whose territory is affected by a given project, but that, second, while the aim of the exercise is ordinarily to obtain their consent, where there is “a compelling and substantial objective” governments may proceed without it.

This is consistent with common law principles on property rights generally: they are important, but not absolute. The state is obliged to offer fair compensation when it expropriates someone’s land, but, provided it is for a public purpose of sufficient importance, the broader public interest must prevail.

As the federal judges said in their ruling, First Nations “cannot tactically use the consultation process” to kill a project by endless delay. (Trans Mountain is alive today because the federal government nationalized it, and is now 70 per cent over budget, largely due to the time spent fighting its case in various courts.) “The duty to consult does not guarantee that a specific accommodation will be warranted or possible,” they wrote, nor does the objective of reconciliation “dictate any particular substantive outcome.” Otherwise, “Indigenous peoples would effectively have a veto. … The law is clear that no such veto exists.”

The law may be clear about that, but it is clear about little else. There is a vast gulf of possible interpretation between “duty to consult” and “no veto,” and the courts have offered little guidance as to where the appropriate balance lies, beyond admonishing both sides to negotiate in good faith. Into that legal vacuum have poured the protesters and the activist groups, tying up the courts, delaying the process and, when they don’t get a judgment they like, ignoring it – daring the police to enforce it, and crying police brutality if they do.

Governments and pipeline developers are thus faced with an intractable dilemma. No one disputes they have a duty to consult with affected Indigenous groups. But it is too often unclear with whom they should consult, or how. Absent reforms clarifying who speaks for Indigenous peoples and what is implied by the duty to consult, these farces will be repeated again and again.