Business Law
25 Who Does the Consulting?
Learning Objectives
- Describe who holds the legal obligation to consult.
- Explain why Industry has taken on the role of consulting in recent years.
- Identify problems associated with Industry taking on the Duty to Consult.
The Duty to Consult is a Crown obligation. That said, whenever a private company has wanted to build a project, the Crown has foisted much of that responsibility upon the project’s proponent. Corporations have now taken on the Crown’s role of maintaining relationships with Indigenous Peoples (Ritchie, 2013).
For example, in 2010, the Canadian company Enbridge filed an application to build an oil pipeline from northern Alberta that would cross B.C.’s northern territory and have a terminus in Kitimat. From there, oil tankers would transport the oil to its end destination. This project was slated to cross numerous groups’ territory, and as the project would have an impact on Aboriginal rights, the Duty to Consult was invoked (Government of Canada, 2014).
Pipelines crossing provincial boundaries are a federal responsibility, and joint review panel meetings were held to prepare project approval recommendations to the federal government. The joint review panel took into account environmental, economic, and scientific evidence, in addition to the views of Indigenous peoples. However, the bulk of the consultation work with Indigenous communities was carried out by Enbridge itself. To mitigate damage to traditional territory, the company individually engaged and consulted with all Indigenous groups along the route, such as by instating minor route changes, providing funding for archaeological digs, and forging revenue-sharing agreements (Stueck, 2012). In 2016, the federal government rejected the pipeline, in response to both widespread protests and Indigenous communities’ concerns about the project.
Another more recent example is LNG Canada’s proposal to build a liquefied natural gas pipeline, with a terminus also landing in Kitimat. The Government of British Columbia did foster some agreements among some groups along the route (Province of British Columbia, n.d.-b). However, much of the heavy lifting to consult and accommodate Indigenous groups landed on LNG Canada’s shoulders. This included preferential contracting opportunities for supplies and commitments to employ Indigenous peoples (LNG Canada, 2020).
Kaitlin Ritchie (2013) discusses the many unfortunate consequences of companies becoming heavily involved in the consultation process. First, this undermines long-lasting reconciliation between the Crown and Indigenous groups. There is no longer a nation-to-nation relationship being maintained, but a series of one-off interactions between private business and First Nations. Second, many businesses are not in a position to offer the kinds of long-lasting concessions that would help restore the damaged relationship between Canada and Indigenous groups. Most often, they may only offer minor project alterations or employment promises rather than truly transformative treaties (like the Nisga’a Treaty, which was the first modern treaty between a First Nation and the Government of British Columbia). Last, Indigenous offices are often understaffed and underfunded. They are frequently inundated with numerous government and private interests making requests about a wide variety of topics requiring a significant array of expertise, and the band office may be unable to respond to requests. Leaving individual corporations to consult with Indigenous groups puts more strain on the resources of those groups than if they were to deal only with the same handful of government representatives.
In the section What the Duty to Consult is Not, we noted a problem that has been arising over time: one project may not be destructive to Aboriginal title, but numerous small projects can gradually chip away at a group’s Aboriginal title. The Crown is obligated to factor this into account when consulting. Industry proponents not familiar with the past history of other parties’ dealings may not be in a position to consider these effects.
Industry is likely not keen on the current situation. In addition to taking on the expense of consulting and relationship-building, they are left with the legal uncertainty of when adequate consultation has been achieved. They are also not in a position to consider the impacts of past projects or grant remedies or accommodations to right past injustices, whereas the Crown would be.
For the time being, people wishing to conduct business in Indigenous territory must, at their own expense, help right the government’s colonial history. A private business that fails to adequately consult may have their project court-ordered to a halt because the Crown did not fulfill its legal duty.