Consultation law passed with a whisper
Is the new law governing how industry talks to aboriginal groups good for either side?
Tim Querengesser is senior editor with Alberta Venture. He once snowmobiled to the Arctic Ocean to interview a guy in elf shoes about reindeer. Really. Peace Pipe is his critical look at the intersection between Indigenous peoples and industry. Email Tim
by Tim Querengesser
In politics, releasing damaging or embarrassing news is reserved for late Friday afternoons. That’s when journalists are either focused on the weekend, or, back in the old days, couldn’t file stories before the following Monday morning. The tactic, if a little less effective in the era of online news, meant the sting of the bad news would be lessened, or the news might be entirely overlooked by the media. The show ‘The West Wing’ called the tactic “the Friday news dump.”
On Friday August 16, the Alberta government used a Friday news dump to announce that it had passed final reading of legislation governing the consultation between industry and aboriginal groups in the province. The reason why this important law, which has been attempted to be pushed through twice in the past, was so quietly announced is partly apparent through some of the ensuing reaction. “Government has the complete upper hand,” Athabasca Chipewyan First Nation spokesperson Eriel Deranger was quoted saying in Maclean’s. “We don’t want government to be developing stuff for us; we want to developing things in partnership with governments.”
When the legislation formally becomes law this fall, one government office will now set standards for when and if consultation is required for resource development projects, and when that consultation is concluded. For a provincial government with Constitutionally and Treaty-limited authority to set boundaries on aboriginal rights in this way, it’s a bold step. But regardless of the boldness, many of the grievances that aboriginal groups have with the policy nonetheless remain cooked into its final recipe. These include which areas should be considered to be opened for mineral exploration leases. And as Deranger pointed out in the Maclean’s report, that’s pointing to the potential for much future strife and blockages. “If the First Nations were consulted during licensing and permitting, the company could work out and mitigate those concerns at the very beginning, when they are applying, rather than be taken aback by an application that an exploratory project that they had been granted licence for is being contested.”
Indeed, this final recipe calls into question whether the new law will help industry (as many observers both within government and within industry quietly expected it to), or ratchet up tensions and ultimately hurt its aims. While the legislation will set consultation timelines, which industry wants, and insist that industry provide cash to aboriginal groups to participate fully in consultation, which aboriginal groups have demanded, there are still concerns.
After all, the very scenario Deranger told Maclean’s about, minus the aboriginal consultation office at least, is now likely to play out in the case between Brion Energy Corp, a joint venture between Athabasca Oil Corp. and PetroChina. The Alberta Energy Regulator has given Brion the green light to proceed with its 250,000-barrel-per-day thermal oil sands lease without a buffer zone between it and the Fort McKay First Nation’s reserve lands. As this blog reported, that decision, vehemently rejected by the First Nation, will likely see Fort McKay — possibly the most pro-resource development aboriginal government in the country — challenge the AER’s ruling in a higher court.
Delays are almost guaranteed if that happens.
But despite this strife, the new consultation law has been passed, and the Alberta government has put itself in the centre of arbitrations between the interests of non-aboriginal Albertans, industry hoping to develop resources, and aboriginal groups in the province. It’s debatable whether the new law satisfied any of the three groups. As David Pryce, the vice-president of operations at the Canadian Association of Petroleum Producers, told Maclean’s, “If there are policy questions about the merits of water use or some other broader question, we think those need to be addressed by the Crown and not addressed at the project application stage. People want a place to have that conversation. Enable that place.”
Time will tell if that place will be a federal court.