Uncertainty over duty to consult First Nations over traditional territories

Canadian governments and wind project developers are grappling with the details of a relatively new consultation requirement that could end up impeding projects if not done right. Recent Supreme Court of Canada decisions have ruled that government has a "duty to consult" with First Nations groups about any infrastructure projects on land within their traditional territories that could be subject to a treaty right or land claim. The threshold is low, Valerie Helbronner of the law firm Ogilvy Renault LLP told delegates to Canada's annual wind industry trade show last month, meaning "almost anywhere in the country would trigger the existence of the duty." While the duty rests with government, as a practical matter it is falling on the shoulders of developers. Uncertainty over what is required is leading to project delays. One thing that is clear, said Helbronner, is that the duty to consult is not a a duty to accommodate. "The courts have been clear the consultation must be meaningful, but the courts have equally made it clear that the duty to consult does not actually require consent from the First Nation." But Native leaders attending the trade event served notice that they expect more than just token consultation. "It kind of implies that if you do the checklist you will be able to do business, but really what it implies to me is that we are just starting the conversation. There is no checklist. The checklist comes as we go," said Arnie Bellis of the Council of the Haida Nation. It appears the requirement could have further implications for wind, as one First Nations delegate hinted at when questioning Neil Banera from the British Columbia (BC) energy ministry. "In light of traditional land use, doesn't this put a bit of a damper on plans by BC Hydro to flood more traditional territories and wouldn't wind energy, at that point, be a viable option?"

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