Hamlet Versus Petroleum

Consultation & Modern Impact Assessment

Hamlet Versus Petroleum

In 2017, the Supreme Court of Canada (SCC) quashed a decision by the National Energy Board (NEB) because the, now, Canada Energy Regulator (CER), had approved a project for offshore seismic oil and gas exploration while breaching the Crown’s duty to consult Inuit people. The case, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, also clarified that parties can rely on the regulatory process to fulfill the duty to consult.

The government’s involvement in the impact assessment (IA) process is prescribed in legislation. The Impact Assessment Act, S.C. 2019, c. 28, s.1 (IA Act) is the federal standard for Canada’s IA regulatory process wherein Aboriginal and Treaty Rights must be considered. The IA Act regulates the “federal process for [IAs] and the prevention of significant adverse environmental effects.” This process requires that certain projects (oil and gas pipelines, electrical transmissions, wind turbines) automatically undergo assessment conducted by the Impact Assessment Agency of Canada (IAAC). These decisions may be overturned by the courts where the Crown’s duty to consult Aboriginal people is not upheld.

An aspect of the regulatory process highlighted by Hamlet is that when the government is relying on the IAAC to uphold the duty to consult, the Aboriginal group involved must know. As in Hamlet, the SCC ordered that the NEB consider the duty to consult or else withhold approval for that particular project. In any event, Hamlet states that “[w]here the regulatory process being relied upon does not achieve adequate consultation or accommodation, the Crown must take further measures.”

In 2019, the IA legislation was modernized and the IA Act replaced the former federal act of the Canadian Environmental Assessment Act, 2012 (CEAA, 2012). Further, the Canada Regulator Act (S.C. 2019, c. 29, s. 10), (CER Act) resulted in the name change of the NEB to CER. In the IA Act particularly, being federal, subsection 2 (c) specifies that certain impacts on Indigenous peoples are within the jurisdiction of the Act to regulate such as: physical and cultural heritage; use of lands and resources for traditional purposes; historical sites; changes to health, social or economic conditions or matters set out in Schedule 3 of the Act.

The effect of both the modernization of the process and the Hamlet case is surely that principles in overarching instruments, like the United Declaration on the Rights of Indigenous Peoples (UNDRIP), which is cited in the both the IA Act and CER Act’s preambles, must be adhered to in the IA process. When the Hamlet decision was rendered, UNDRIP had not yet been domesticated in Canada. The IA Act and UNDRIP now provide added authority for the government and the courts to step in and provide certainty for parties involved in impact assessments i.e., Indigenous communities and companies with projects impacting Indigenous peoples. Precedent like Hamlet, thus, compliments the modernization of the environmental regulatory process to the benefit of Indigenous communities. Hamlet reminds us that both parties should be advised that it still must be clear to the Indigenous groups being consulted that the new IA process is being used to uphold the Crown’s duty to consult.

According to Asad Chaudhary, Associate General Counsel at CER on December 14, 2022: “The inclusion of the UN Declaration in our Act, as well as the government-wide application of the UN Declaration Act is critical. It reinforces the need to collaborate with Indigenous communities in everything we do. Meaningful engagement with Indigenous communities makes us a better regulator by supporting better decisions, improved safety and environmental protection and effective issue resolution.”

Chaudhary also noted that the Calls to Action of the Truth and Reconciliation Commission and the Principles respecting the Government of Canada’s relationship with Indigenous peoples also guides the work of the Canada Energy Regulator.

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