Law Times

Page 12 November 20, 2017 • Law Times www.lawtimesnews.com Where aboriginal law and environmental law intersect BY DALE SMITH For Law Times A s more environmental assessments for proj- ects are taking tradi- tional knowledge and consultation with indigenous peoples into account, lawyers say there can sometimes be a colli- sion between project proponents and the duty to consult as out- lined in s. 35 of the Constitution. Lawyers say that by approach- ing their engagement with indig- enous communities in the right way, they can help to ensure that issues around the duty to consult don't become exacerbated. "Environmental assessments tend to be the logical place in which you are addressing issues associated with the duty to con- sult . . . and, often, obviously, the issues are somewhat overlap- ping," says Patrick Duffy, part- ner at Stikeman Elliott LLP in Toronto. "That's something that the court has encouraged by saying that you can use existing pro- cesses to satisfy that duty." Duffy notes that looking at traditional knowledge of local indigenous people is now re- quired as part of the assessment process by a number of statutes, including the federal environ- mental assessment process un- der the Canadian Environmen- tal Assessment Act, 2012. "There is a guide that has been published by the Canadi- an Environmental Assessment Agency specifically dealing with incorporation of tradition- al knowledge into environmen- tal assessments," says Duffy. "I've dealt with it person- ally quite extensively in the Northwest Territories before the Mackenzie Valley environmen- tal review board." Duffy says that traditional knowledge can be helpful in supplementing scientific knowl- edge, such as with population trends among the caribou in the NWT, where it was able to fill a void that the scientific data was lacking. "The two worked fairly har- moniously in that case," says Duffy. "I think there's a valuable role for traditional knowledge to be played." Recently, the Supreme Court of Canada ruled in Clyde River (Hamlet) v. Petroleum Geo- Services Inc. [2017 SCC 40] and Chippewas of the Thames First Nation v. Enbridge Pipe- lines Inc. [2017 SCC 41] that the National Energy Board can be a vehicle by which the Crown can achieve the s. 35 duty to consult. Michael Fortier, partner with Torys LLP in Toronto, notes that it's not a bright-line test as to whether these tribunals can discharge the duty to consult. "It depends on the strength of the rights of the indigenous group and the potential harm and the magnitude of signifi- cance of that harm," says Fortier. "It's a balancing act, but what you're seeing more proponents do is default to the higher end of the spectrum because they want to avoid the discussion about did you get it exactly right." Duffy notes that lawyers need to be conscious of any legal requirement for accessing such knowledge, as well as knowing when to take it into account even if it's not specifically re- quired, as it can help to fulfil the duty to consult. He says lawyers also need to know how to appropriately deal with the nature of the evidence and how it is presented as part of an environmental assessment process. Duffy says the message is that the Crown doesn't need to create a new body to fulfil the duty to consult but that existing processes can be adapted to deal with the concerns. "Aggressive cross-examination is not appropriate in that sort of setting, so lawyers need to learn to adapt themselves to be cogni- zant of that and to be apprecia- tive that we shouldn't be rigid in applying our structures that we've developed," says Duffy. He also warns that the del- egated process such as with the National Energy Board may not fulfil the duty entirely, as issues may fall outside of the scope of the process, which means that the Crown will still need to con- sult on those issues. When a process that involves indigenous participation is un- derway, lawyers need to ensure that there is a duty to consult on the project and whether the framework that has been estab- lished is sufficient or adequate to address and discharge that duty. "The reason why that's so significant is because the ad- ministrative aspects of a duty can be delegated, but the obliga- tion belongs to the Crown and the Crown discharges the duty," says Raivo Uukkivi, partner with Cassels Brock & Blackwell LLP in Toronto. Uukkivi says the challenge is whether the process is set up in a way that adequately engages and discharges the duty, includ- ing the question of accommo- dations that may be required in order to address concerns that are raised. He says that when acting for a private-side actor in an envi- ronmental assessment process, such as the proponent for a min- ing project, if the duty to consult Patrick Duffy says looking at traditional knowledge of local indigenous people is now required as part of the assessment process by a number of legal statutes. See Duty, page 13 FOCUS If it's all seen in a relationship aspect, then your approach becomes significantly different. Michael Fortier Get a 360-degree view of the public inquiry process Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 988072-65203 $130 Softcover approx. 650 pages October 2017 978-0-7798-8072-0 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Turn to Public Inquiries in Canada: Law and Practice for insightful legal analysis, practical precedents, and step-by-step guidance – all brought to life by first-hand accounts from commissioners, commission counsel, investigators, journalists, counsellors, and witnesses. Authors and Editors-in-Chief Ronda Bessner and Susan Lightstone and prominent contributors share their expertise honed from years of participating in Canada's most high-profile public inquiries. Understand the legal challenges so you can navigate the proceedings effectively Get expert legal analysis on The Role of Commission Counsel, Constitutional Constraints on Public Inquiries, Procedural Fairness and Public Inquiries, and Rules of Evidence at a Public Inquiry – and more. Get behind-the-scenes insight that will help you collaborate with all participants Learn from commissioners, commission counsel, legal and policy analysts, investigators, counsellors, witnesses and journalists what it's like to participate in a public inquiry. Be prepared by following the best practices of past inquiries Get step-by-step guidance from sample documents such as terms of reference, rules of procedure and practice, summonses and search warrants. New Publication Public Inquiries in Canada: Law and Practice Authors & Editors-in-Chief: Ronda Bessner and Susan Lightstone © 2017 Thomson Reuters Canada Limited 00246FW-A88503-NK

• Cover