Saturday, July 19, 2008
Duty to consult: Canada - Oil fields, etc http://www.petroleumnews.com/pntruncate/208888115.shtml Proponents doing deals In Canada the government hasn’t quite figured out how to discharge these new legal obligations of consultation, so project proponents are going out and doing deals, Bergner said. Proponents aren’t required to consult, but it’s awfully nice to have consent and things go quicker and smoother, he said. So to blow away legal uncertainty, proponents have negotiated access or benefit agreements. While not a legal requirement, this makes project approvals go faster and eliminates a source of challenge. While there is no formula for such agreements, Bergner said common elements on the First Nations side are jobs, contracting opportunities and financial considerations, while project proponents get legal certainty. Such agreements also typically contain ongoing formalized communication that keeps the First Nation and the project proponent — and sometimes government as well — at the table discussing issues as they arise. The alternatives — judicial reviews, appeal, judicial injunctions and potential delays — are not pretty, Bergner said. Any project will face First Nations consultation challenge Sen. Hollis French, D-Anchorage, chair of the Senate Judiciary Committee, brought Bergner to the table, based, French said, on the fact that Bergner wasn’t aligned with either side and has written on the crown’s duty to consult. Asked by French if TransCanada is in any better position than any other potential pipeline builder in the Yukon and British Columbia, Bergner said any project using land in Canada is going to face the consultation challenge.