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35 CANADIANLAWYERMAG.COM/INHOUSE NOVEMBER 2017 I n d u s t r y S p o t l i g h t ties to participate early in the regulatory process if an indigenous group is affected. "No one benefits — not project proponents, not indigenous peoples, and not non-indig - enous members of affected communities — when projects are prematurely approved only to be subjected to litigation," the court wrote in its Clyde River judgment. The history of the legislative framework for energy or mining projects in Canada has been driven by a presumption in favour of granting approval at the end of the process, notes Schulze. "It is hard to reconcile that with the duty to consult. Aboriginal people would like the process to include the possi - bility to say no," he adds. However, in Clyde River he is pleased with what the SCC stated is required, as a result of the rights granted in the 1993 Nunavut Land Claims Agree- ment. "The Inuit have very clear treaty rights and a crystal clear right to harvest marine mammals," says Schulze. "It will be a different exercise when rights are asserted but not admitted by the Crown," such as with the Chippewas of the Thames First Nation, Schulze says. In that scenario, the level of consultation required will likely depend on specific facts related to a project. For the Inuit, the express treaty rights required "deep consultation" by the Crown. Given all the facts, the SCC decision in Clyde River was not a surprise, says Pratt. As it relates to the proponent's role, "It was an example of 'small-c' consultation" that included a significant amount of data ulti - mately provided in a way that was not widely accessible, she notes. "It did not meet the threshold of being meaningful. Proponents need to be mindful, not only of what infor- mation they are sharing, but how they are sharing it," Pratt says. Effective consultation, says Jantzi, re- quires genuine efforts by a proponent at an early stage. "That is the whole purpose of the consultation, to find out and ad- dress the impact and what can be done to protect those interests," he says. "From a proponent's perspective, it also needs to determine what the government is going to do in the tribunal process. Is it going to be enough," Jantzi says. Hasan agrees communication at an early stage is necessary. "You need real informa - tion sharing. It is also in the proponent's in- terest to provide funding" for an indigenous group to participate in the regulatory pro- cess, he says. Providing funding is increasingly com- mon, says Ignasiak, and he believes it is important to ensure an indigenous group is fully informed of all relevant issues. Consultation can be an extensive pro - cess, he notes, especially for projects such as pipelines, where many communities may potentially be impacted. At the same time, if done properly, it can also significantly re - duce the chance of judicial review of a regu- lator's decision. "You are trying to build a relationship so that, ideally, the community will sign off on the project," he says. IH Visit gpllm.law.utoronto.ca Questions? gpllm@utoronto.ca Apply today. ONE YEAR | PART-TIME | FOR LAWYERS AND BUSINESS LEADERS Master the Law. Canada's leading law school offers a graduate degree in four unique streams: Business Law Canadian Law in a Global Context Innovation, Law and Technology Law of Leadership ntitled-5 1 2017-08-17 3:02 PM

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