2017 brought more clarity to proponents whose projects may interact with Aboriginal rights. Despite this, failure to consider Aboriginal and treaty rights remains one of the top 10 legal risks for business in 2018 as identified by the national law firm Borden Ladner Gervais (BLG). In the firm’s annual threat assessment, environment and climate change also make the cut.
There were several important decisions handed down that clarified the obligations of proponents and the Crown when Aboriginal and treaty rights are at play, Alan Ross, regional managing partner, BLG Calgary, told EcoLog News, citing Clyde River and Chippewas as among the most important. However, clarification doesn’t mean that everything is now crystal clear.
“There is still an issue of what is proper consultation and what does that mean,” Ross admits. “Consultation can mean different things to different people.” On an energy project, for instance, consultation with a First Nation that is familiar with energy development may be entirely different than with a First Nation doing it for the first time. There are First Nations in Alberta that are well acquainted with contracting and commercial relationships with the energy sector, says Ross. For them, consultation can take on an entirely different meaning.
For 2018 and beyond, “direct engagement between companies and First Nations groups is critical,” he says, with the caveat that “there is an uncertainty still under the law and in practice.”
With respect to climate change generally, and carbon pricing specifically, companies are entering 2018 with much more certainty than in the past. Over the past several years, the risk has been the uncertain shape that climate policy might take. Those policies are now largely known, and businesses can prepare to adapt to them.
Where risk now lies, according to Ross, is continent-wide in what he calls the “dis-integrated North American policy on climate change.”
Until November 2016, businesses in North America could be fairly confident of Canadian and American climate policies marching in-step. With the election of Donald Trump and the swift reversal of U.S. climate policy at the U.S. federal level, Canada now faces a greater risk of investment flight to U.S. jurisdictions with a lower carbon cost.
It’s far from certain that the money will flow south, however. A rational investor may see Trump as merely a speed bump on the road to carbon pricing in the U.S. Also, despite U.S. federal actions (or inaction), many states have moved forward under their own authority with carbon pricing and other carbon control mechanisms.