An Alberta King's Bench judge's decision that a proposed referendum question supporting separation is unconstitutional because the province had a duty to consult First Nations has implications for the referendum question and for the Alberta-Canada MOU proposing a pipeline to the Pacific Coast.
Referendum and MOU Implications
On the referendum, the result is a wordy and confusing question that asks Albertans if they want to remain in Canada or 'commence the legal process' to hold a 'binding referendum on whether or not Alberta should separate from Canada.' Regarding the MOU, the flaws in the judge's interpretation of the duty to consult add to the uncertainty and risks of building a pipeline to the West Coast.
Expert Criticism
Dwight Newman, a University of Saskatchewan law professor and expert in constitutional and Indigenous rights law, criticized the judge who 'mechanically applied the duty to consult test' rather than taking a broader view of the importance of participation in referendums as a 'vital act of democratic participation.' The shortcomings of this decision were described by Newman as part of a pattern in which 'simplistic understandings of rights and desires to apply simple little legal tests have overtaken judgment,' citing the example of the British Columbia Cowichan decision, which called into question private property rights and caused 'chaos.'
Judicial Risks
Judicial decisions that misinterpret the duty to consult can be appealed and overturned by the Supreme Court. But the risk for pipeline companies is that a problematic trial court decision causes lengthy and costly delays as appeals wind their way to the Supreme Court.
UNDRIP and Indigenous Participation
The uncertainty and risks associated with judicial interpretations of the duty to consult are compounded by the federal government's adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Newman warns that UNDRIP could frame court decisions and raise the standard for Indigenous participation in infrastructure projects from duty to consult to the requirement of Indigenous consent, effectively giving First Nations a veto and risking 'additional legal challenges for national infrastructure projects being pursued by the federal government.'
Impact on Competitiveness
The risks and uncertainties over shifting policy and court decisions regarding Indigenous participation in projects compromise Canada's competitiveness. Canada can diversify its trading relations beyond North America; however, it must compete with the United States for investment. The government has made important policy changes to facilitate the building of a pipeline to the West Coast, which would enhance energy security, trade diversification, employment and government revenue.
However, to date, there is no proponent for such a pipeline. Instead, Alberta's two biggest companies have announced plans to pursue building oil pipelines to the U.S., even though that oil sells at a discount. One advantage of building pipelines south rather than west is avoiding the uncertainties associated with Indigenous participation in major projects. Also, there is support for pipelines in the states south of the border; Wyoming's governor welcomed the prospect of a Canadian oil pipeline through his state and called it a sign of cross-border co-operation.
Enhancing Canadian competitiveness requires federal government changes with respect to Indigenous participation in major projects.
