Hot Time Summer in the City!

What with one faction of native activists proclaiming there’s no point in pursuing any more court actions; another faction saying there’s no point in meeting with the federal government, and yet another faction promising that it’s going to be one hot summer – I ask:  “What is one supposed to make out of this apparently confused and directionless situation”?

One alternative that is not mentioned (except by me) is to gather up all the native legal wins and ‘drive them home’ in order for natives to become major players in the resources sector. But that would require a coherent strategy that focused instead on the provincial and territorial premiers; who actually control their respective resource priorities. It would also require certain alliances with the PMO, Bay Street, Banks and NGOs; in order to convince Canadians that their resources payoff will flourish with natives onside – but languish with natives offside. But none of this seems to be happening: instead major media commentators are consumed with intimidating headlines such as “Report warns of ‘catastrophic’ aboriginal uprising.”

Yet natives shouldn’t rest on their laurels as far as their record-breaking winning streak goes. Because there’s a subtle shift going on in one particular area, that of project environmental reviews; where natives have recently lost no less than three procedural legal challenges. There was a time, not that long ago, where this type of regulatory challenge served up one native legal win after another – but that is no longer happening. That’s because the strategists on the regulatory-side have learned from their mistakes: a) regulators have become much more attuned to handling native assertions in these proceedings b) moreover government lawyers have finally figured out how to avoid their previous mistakes c) and disconcertingly, perhaps natives should not have launched these legal challenges in the first place.

Here’s a recent example of just such a loss from the Muskrat Falls hydro-electric project review; the Applicant was a native group situated 100s of miles away on the north shore of the Gulf of St Lawrence. What follows is a précis of the court’s logic;

[82] On the contrary, the CEAA was closely followed and adhered to at every stage of the process.

[84] … to validly conclude that (native) usage in the Project area is “seasonal, sporadic and of short duration”.

[98] It is clear from the facts of this case that the federal government understood its duty to consult the Applicant on the Project.

[113] The Court is satisfied that the consultations conducted by the Joint Review Panel during the Environmental Assessment constituted federal government consultation.

[129] … the Court is of the opinion that the Applicant’s position “frustrate[d] the consultation process […] by imposing unreasonable conditions” (Halfway River)

[136] One obvious difference is that the Project will be located on or in closer proximity to the land where the Innu Nation lives and to which it claimed title.
(excerpts Ekuanitshit v. Canada / NL / Nalcor 2013 FC 418 (April 23 2013)

All the elements of the losing outcome are clearly discernible (see author’s underlining) and in retrospect the Applicant’s case appeared to be unwinnable.

There’s a serious strategic lesson in this for the native faction that now refuses to negotiate, and especially for the native faction that plans to disrupt the Canadian economy over the summer – my advice is: “Why not instead maximize your legal leverage by parlaying your wins into some serious political leverage; and do it now while you still have a robust legal winning streak to work with.”

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