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Conflict and Extractive Industries in Canada: The Potential of Mediation to Mainstream Identity and Resolve Pipeline Disputes

In this paper I will be examining the role of mediation to resolve conflicts in extractive conflicts. For the purposes of understanding the importance of meditation I will have to look into the laws and practices within Canada and around the world. Through this paper, I will analyze how mediation is best suited to resolve conflicts in the Canadian context. 

Environmental Mediation

Environmental mediation’ is a process whereby existing or potentially conflicting parties concerned with an environmental and/or land resource get together with a neutral third party to discuss their positions with regard to the resource. It involves bargaining, sharing of information’, and ultimately compromising on original positions so as to achieve a solution ‘acceptable’ to all parties involved. The final decision is in the hands of the parties. The outcome of mediation mayor may not be an enforceable agreement. The aim is to achieve a ‘win/win’ or ‘all-gain’ outcome rather than the ‘win/lose’ outcome possible with the adversarial approach. 

Mediation has been used in cases involving land’ use, natural resource management and use -of public lands, water resources, energy, air quality, and toxics. Success can be defined in a number of ways: reaching agreement, implementing an agreement, improving communication, or in the process itself. The advantage of mediation is that where a dispute involves matters of cultural interest, processes can be developed that are sensitive to cultural norms. 

Mediation is also considered promising in the resolution of transnational disputes such as the regulation of interstate water supplies, the trade in genetically modified organisms, or the regulation of greenhouse gases. 

The Benefits of Mediation of Environmental Disputes

In many cases the dispute will be between parties who have a continuing relationship, e.g., in cases of continuing land use or where there is potential for long term relations and use of recourse. Mediation removes fault from the equation and allows the parties to simply agree to a solution to their dispute that both can live with. Mediation being less adversarial than litigation or arbitration, it offers the parties the opportunity for a settlement of their differences on a mutually acceptable basis.

It also allows the parties to form creative solutions to their problems that would not be possible through litigation or arbitration. For example, if the parties’ dispute concerns deep rights in one locale, the parties may agree to a swap of other acreage that one party may not find valuable but the other does.  

In some cases, both parties to a dispute are used to “calling the shots.” The degree of direct involvement by the parties allows such individuals to direct the process and outcome of the matter. It prevents things being lost in translation and the parties can be involved without lawyers/ counsels.

In other cases, mediation can even the playing field, allowing the parties to engage in discussions to fully explain their positions to one another and search for common ground. Mediations maintain privacy and confidentiality and make it a clear choice for disputes that the parties would rather not have publicly followed. 

Settlement may be impossible because of an intransigence in an attorney or party as to the value of the case, view of the facts, or interpretation of the law. While a mediator may not bind the parties, a good mediator will certainly offer thoughts as to the strength of a position during a private caucus. 

Mediation provides a sense of buy-in and accountability. If the parties are responsible for the outcomes of the mediation and therefore, would feel the need to be invested and involved, therefore resulting in a better solution than that given by a judge where neither party would be happy with the result. 

Mediations are not only cost effective but time effective as well unlike litigations and arbitration where the cost run high in both terms of legal fees paid and energy invested in prosecuting or defending a lawsuit. 

Limitations on the use of mediation in environmental disputes

In energy and natural resources disputes, knowledge of the industry can be essential to the mediator’s credibility and hence success.in environment disputes it is always beneficial if the mediators have the technical know-how of the field or the resource in question. It would help move the conversation along.

Another big problem that arises is that the agreements formed after mediation sessions are not binding nature in the same manner as a judgment of a court or an arbitral award would be. Further, the agreements and the process sometimes overlook the necessary regulatory approvals and regulations when trying to come up with a creative solution. The parties forget that in order for their agreement to make sense they would need to make it in compliance with the existing laws and regulations. 

Canadian Context

Mediation can be challenging in any context specially where there are multiple stake holders involved. In Canada, many other factors also play a part in any form of dispute resolution. We have to be careful how we address the sensitive issues of identity and rights of the Indigenous/ Aboriginal people. We have to understand specifically in relation to environment disputes that the land and resources that fall under the rights of the aboriginals are protected by the Constitution Act of Canada. 

Constitutional provisions in Canada and protection of Aboriginal rights and titles: Section 35 of the Constitution Act 1982, recognizes and affirms existing Aboriginal rights but does not define them. What Aboriginal rights include has been the topic of much debate and discussion, and they have been defined over time through Supreme Court cases. Aboriginal rights have been interpreted to include a range of cultural, social, political, and economic rights including the right to land, as well as to fish, to hunt, to practice one’s own culture, and to establish treaties. The Aboriginal rights are connected to general environmental rights, if the environment degrades, consequently, so does their right. 

We understand that in the context of the environment, that only does it cover the use of resources and rights over them, but it also covers the right and use of land in their region/ areas. The laws of Canada have clearly talked about the duty to consult and how it is a requirement of the crown to consult the Aboriginals when it appears that their rights maybe getting infringed. The Supreme Court has in many cases explained not only what the rights and titles of Aboriginals are but also what the duty to consult actually means. Two notable cases are Haida Nation v. British Columbia (Minister of Forests) and R v Sparrow. They lay down the basis and the requirement of duty to consult and accommodation. 

In the case of Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, the Court recognized pre-existing Indigenous sovereignty for the very first time. “It referred to Crown sovereignty and control as ‘assumed’ and ‘de facto’, without any explanation of how the Crown could have de factor sovereignty over territories that were completely occupied and controlled by Indigenous peoples before and for some time after the Crown’s supposed acquisition of sovereignty in 1846”. 

The duty to consult arises when:

  1. 1. the Crown has knowledge, actual or constructive, of a potential aboriginal claim or right;
  2. 2. the Crown must be contemplating conduct which engages a potential aboriginal right; and
  3. 3. there must be the potential that the contemplated conduct may adversely affect an aboriginal claim or right.

The court set out a R v Sparrow [1990] 1 S.C.R. 1075, the mechanism by which the Crown can override Aboriginal title in the public interest:

  1. 1. Crown must have carried out consultation and accommodation;
  2. 2. Crown’s actions must have been supported by a compelling and substantial objective; and
  3. 3. Crown’s action must have been consistent with its fiduciary obligation to the Aboriginal body in question.

As a result of the landmark decision, provinces cannot claim a right to engage in clear-cut logging on lands protected by Aboriginal title and must gain approval for such action from the titleholder before proceeding.

The duty to consult is a statutory, contractual and common law obligation that must be fulfilled by the Crown (the federal, provincial and territorial governments) prior to taking actions or making decisions that may have consequences for the rights of Indigenous peoples. However, this does not include changes in legislature. This is more focused with the rights and titles of Indigenous people. The duty to consult has been deliberated and justified by various ruling of the Supreme Court. The duty to consult is considered by many to be an important step toward reconciliation with Indigenous peoples. 

Reconciliation can only be achieved with effective mediation i.e. duty to consult which is the very aim of Bill C-262 and UNDRIP. Any mode of consultation would be fine but the most effective and non-adversarial of that is mediation. Mediation is a method by which all the parties are on equal footing and no one side is defending themselves. It provides an open platform to discuss and explore solutions and problems in depth. 

It is to be noted that in Canada the failure to consult meaningfully may result in the delay or eventual cancellation of a project. For example, on 30 August 2018, the Federal Court of Appeal overturned the Canadian government’s approval of the Trans Mountain pipeline expansion project due, in part, to inadequate consultation with Indigenous peoples. However, consultation does not imply an Indigenous veto upon development activity. Rather, consultation is intended to protect Indigenous rights and to preserve the future use of resources for Indigenous peoples.

Conclusion

Mediation can be highly effective in resolving environmental disputes where the parties are capable of compromise and desire to keep a high level of control and confidentiality with regard to the proceedings. Resort to mediation can facilitate an expeditious resolution of a dispute, thereby resulting in expediency and cost-savings. 

Mediation is non adversarial in nature and taking part in adversarial proceedings by the Canadian government and its people would defeats the efforts the country is trying to make towards reconciliation. 

References

  • A review of environmental mediation: theory and practice –  http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.574.4147&rep=rep1&type=pdf
  • “ADR_Natural_Resources_Conference_Proceedings.Pdf,” n.d.
  • Bello, Temitayo. “Dispute Mechanism in Petroleum Industry; an Overview of Arbitration Frontiers.” SSRN Electronic Journal, 2017. https://doi.org/10.2139/ssrn.2971020.
  • Blackford, Carolyn. Contents, 1992.
  • Bonnie G. Colby and Tamra Pearson d’Estree, Environmental Restoration: Challenges for the New Millennium: Evaluating Market Transactions, Litigation, and Regulation as Tools for Implementing Environmental Restoration, 42 ARIZ. L. REV. 381, 393 (2000)
  • Brown, Oli, and Michael Keating. “Addressing Natural Resource Conflicts,” n.d., 34.
  • Canada, Supreme Court of. “Supreme Court of Canada – SCC Case Information – Search,” January 1, 2001. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2189/index.do.———. “Supreme Court of Canada – SCC Case Information – Search,” January 1, 2001. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/609/index.do.
  • Clayton, Govinda. “Oil, Relative Strength and Civil War Mediation.” Cooperation and Conflict 51, no. 3 (September 2016): 325–44. https://doi.org/10.1177/0010836715610596.
  • “Constitution Act, 1982 Section 35.” Accessed May 8, 2020. https://indigenousfoundations.arts.ubc.ca/constitution_act_1982_section_35/.
  • “Duty to Consult | The Canadian Encyclopedia.” Accessed May 8, 2020. https://www.thecanadianencyclopedia.ca/en/article/duty-to-consult.
  • “Mediating Land Use Disputes.Pdf,” n.d.
  • “Mediation in Oil and Gas Law Disputes – Oil, Gas and Energy Law Blog – Energy – LexisNexis® Legal Newsroom.” Accessed May 8, 2020. https://www.lexisnexis.com/legalnewsroom/energy/b/oil-gas-energy/posts/mediation-in-oil-and-gas-law-disputes.
  • Nancy Oretskin and Ann MacNaughton, Is Mediation a Better Alternative for the Resolution of International Environmental Disputes? in Environmental Dispute Resolution: An Anthology Of Practical Solutions 207, 207-209 (Ann MacNaughton and Jay Martin eds., 2002)
  • “NegotiationandMediationTechniquesforNaturalResourceManagement_FAO2005.Pdf,” n.d.
  • Rosemary, Sandford. “Environmental Dispute Resolution : Mediation, an Effective Alternative to Litigation?,” n.d., 208.
  • Schoenbrod, David. “Limits and Dangers of Environmental Mediation: A Review Essay.” NEW YORK UNIVERSITY LAW REVIEW, n.d., 26.
  • Shade, Joseph. “The Oil & Gas and ADR: A Marriage Made in Heaven Waiting to Happen.” TULSA LAW JOURNAL 30 (1994): 59.
  • Shekhar, Dhruv. “Mediation for Environmental Disputes in India.” Kluwer Mediation Blog, August 23, 2017. http://mediationblog.kluwerarbitration.com/2017/08/23/mediation-environmental-disputes-india/.
  • Environmental ADR. “The Benefits of Environmental Mediation.” Accessed May 8, 2020. https://environmentaladr.com/the-basics-of-environmental-mediation/benefits-environmental-mediation.
  • “The Potential For Mediation to Resolve Environmental _CONNOR-Higgs_.Pdf.” Accessed May 8, 2020. 
  • http://www.acctm.org/docs/The%20Potential%20For%20Mediation%20to%20Resolve%20Environmental%20_CONNOR-Higgs_.pdf.
  • United Nations, Department of Political Affairs, and United Nations Environment Programme. Natural Resources and Conflict: A Guide for Mediation Practitioners., 2015.
                        author

Vrinda Sagar

Vrinda's educational background is as impressive as it is relevant; she holds a Master of Arts in Conflict Resolution from Georgetown University, complemented by a Bachelor of Laws from Delhi, India. Her academic achievements have equipped her with a comprehensive understanding of both the legal and emotional intricacies involved in… MORE >

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