Duty to Consult on Pipelines: Consultants on Hotseat

Posted by Tad McIlwraith on November 17th, 2006 filed in First Nations, Treaties

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Christine Mingie (Forestry Law Blog) offers a useful summary of the Dene Tha case.

Original Post

Deborah Yedlin asks several questions today that many in the general public ask when resource development is stalled by the demands of aboriginal people. The focus of her Globe and Mail article (subscription required; alternate link below) is the MacKenzie Valley pipeline and the complaint from the Dene Tha (Athapaskan) that they have not been properly consulted. Yedlin wonders why a relatively small number of people affected in a limited way by the proposed pipeline can hold up the process or sue the government for compensation.

Is it right that projects go forward solely on the basis of what companies or governments are prepared to pay, beyond what is covered under the various treaties? Isn’t the bigger elephant in the room the one that deals with constitutional rights of aboriginal groups and how far these extend? Why can’t there be a clear set of rules that sets out the standards for consultations on both sides of the table?

Yedlin continues and turns some of her attention to the consultants who work for the Dene Tha. She asks why their representation of their aboriginal clients was not sufficient. She writes:

The Dene Tha argued they had been trying to get a seat at the table for the past six years. What’s interesting is that they, like many other first nation groups, engage consultants to work on their behalf. What exactly did the consultant(s) get paid for, if not to ensure the Dene Tha’s voice was heard? And did it need to take six years or is this a tactic employed at the last minute for the greatest impact?

Towards the end of the article, Yedlin notes that the same things are going on in British Columbia. The Enbridge Gateway Pipeline, proposed to run between Edmonton and Kitimat, is opposed by the Carrier-Sekani Tribal Council because of ‘failures to consult.’ They are suing the federal government.

(Alternate link to the story via Protecting Knowledge Yahoo Groups)

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2 Responses to “Duty to Consult on Pipelines: Consultants on Hotseat”

  1. Ed Says:
    November 22nd, 2006 at 10:30 am

    Wow, this article was really troubling. It amazes me that those who don’t want to play fair use the “First Nations are acting up again” language to delegitimize their claims. Implicit in the article is the culturally loaded stereotype that First Nations cannot speak for themselves, but must rely on outside agitators (such as consultants) to mobilize their specific and “unfair” claims. Completely buried in the article is the fact that the Dene Tha won their case, and the court decided that the consultation process was unfair and needed to be revised. I’ve followed some of the administrative blunders regarding the expansion of the Pipeline project to the Kendall Island Bird Sanctuary, most notably the drilling license that was issued “in error” to Chevron when none had been applied for and the consultation on a landing strip had not been completed. Environment Canada stated it was a unique error, but environmental groups claim the error was an indication of pressure on the Government to approve the deal. A number of issues aren’t being addressed, and I expected more from national coverage of the story. The Federal government seems set on making Canada a major player in energy development, but at what cost?

    http://www.cbc.ca/canada/north/story/2006/11/10/kendall-permit.html?ref=rss

  2. Tad McIlwraith Says:
    November 22nd, 2006 at 11:01 am

    Thank you for your insight on these issues Ed. Your questions about the original G&M article are well-stated. I suspect the consultants are complicit in promoting the idea that their role is required. The livelihood of consultants frequently depends on such an image and reputation.

    Where I see things getting really tricky is when the people designated (elected?) to speak for aboriginal communities are at odds with other members of the community … but perhaps that’s a different observation and one better left to another day.

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