The debate on consultation — Canadian Lawyer

Martin Ignasiak

Nov 6, 2017

A pair of unanimous decisions by the Supreme Court of Canada (SCC) relating to the threshold of the Crown’s “duty to consult” and the National Energy Board’s (NEB) jurisdiction provide some clarity on how to proceed, Osler partner Martin Ignasiak tells Canadian Lawyer. In her article, author Shannon Kari discusses a pair of companion decisions in Clyde River (Hamlet) v. Petroleum Geo-Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines, which came to different factual conclusions pertaining to the duty to consult and whether it had been met. Martin, a partner in Osler’s Regulatory, Environmental, Aboriginal and Land Group, says these SCC decisions could provide some guidance moving forward.

“These decisions will reduce a lot of the arguing around the edges about the process,” Martin tells Canadian Lawyer.  

But Martin cautions that while in some areas these rulings provide clarity, “there is still going to be debate in the future” when the Crown is not a party in an NEB process. That’s why government consultation in the initial stages is key, he says.

Martin says that effective consultation involves multiple aspects.

“You are trying to mitigate the risk to the proponents,” Martin tells Canadian Lawyer. “You don’t deal just with the communities. You raise issues with Crown agencies, you interact with government departments.”

He adds: “You are trying to build a relationship so that, ideally, the community will sign off on the project.”

For more information, read Shannon Kari’s article “The debate on consultation” in Canadian Lawyer.