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CANADIANLAWYERMAG.COM/INHOUSE NOVEMBER 2017
I n d u s t r y S p o t l i g h t
The debate
on consultation
SCC decisions on duty to consult provide clarity about how to
proceed in the future, especially for indigenous peoples with
modern treaty agreements.
BY SHANNON KARI
COMPANION DECISIONS issued by the Supreme Court of
Canada this summer to try to clarify the threshold to meet in terms
of the Crown's "duty to consult" and the jurisdiction of the National
Energy Board were widely anticipated. They also may be somewhat
unique in that the response to the decisions has generally been
greeted favourably both by proponents seeking approval for new
energy projects and by indigenous groups wanting to ensure their
rights are not infringed.
The unanimous rulings in Clyde River (Hamlet) v. Petroleum Geo-
Services Inc. and Chippewas of the Thames First Nation v. Enbridge
Pipelines came to different factual conclusions on whether the
duty to consult had been met, but they provide clarity about how
to proceed in the future, says Martin Ignasiak, a partner in the
Calgary office of Osler Hoskin & Harcourt LLP. "These decisions
will reduce a lot of the arguing around the edges about the process,"
says Ignasiak, national co-chairman of the firm's regulatory,
TREATY
ECONOMY
