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Top legal official contradicts Higgs on duty to consult to First Nations

The top official in charge of the province’s legal battles has contradicted Premier Blaine Higgs on the duty to consult Indigenous people on resource projects.

Premier Blaine Higgs said earlier this year the legal requirement for Indigenous consultations on resource projects was vague. (CBC)

The top official in charge of the province’s legal battles has contradicted Premier Blaine Higgs on the duty to consult Indigenous people on resource projects.

Earlier this year, Higgs expressed frustration over the legal requirement for consultations, calling it vague.

But John Logan, the deputy attorney-general, told the legislature’s Public Accounts committee on Thursday that “the duty to consult is quite clear.”

He was responding to a question from Progressive Conservative MLA Stewart Fairgrieve, who said he attended a parliamentary conference in western Canada that featured discussions about how the requirement is “ambiguous” and “confusing.” 

“With respect, I would disagree with you,” said Logan, an experienced lawyer whose non-partisan role is to oversee the Office of the Attorney General. Its lawyers represent the government in most court cases.

John Logan, the deputy attorney-general, told the legislature’s Public Accounts committee on Thursday that ‘the duty to consult is quite clear.’ The statement contradicts that of Blaine Higgs, who said the issue is vague. (Jacques Poitras/CBC)

“The duty to consult is established over the course of decades of case law, but it’s quite clearly articulated.”

Logan said the duty to consult can be applied differently in different parts of the country, depending on whether there are treaties with Indigenous nations. 

And he said there is also a “sliding scale” to the obligation, depending on an assessment of how much a government action would infringe on treaty or title rights.

In June, Higgs revealed that his cabinet had approved a regulation to exempt the Sussex area from a province-wide moratorium on shale gas development.

Several Indigenous leaders condemned that decision, which they said happened without any consultations. 

In the legislature, Aboriginal Affairs Minister Jake Stewart said consultations weren’t needed until after the cabinet decision. “We didn’t even have a regulation until now so there was nothing to talk about,” he said.

In his speech at annual national meeting of the Assembly of First Nations, Premier Blaine Higgs repeated his view that the duty to consult Indigenous people on resource projects, a legal obligation upheld by several Supreme Court of Canada decisions, remains vague and undefined. (CBC)

But Higgs said in a speech at the national conference of the Assembly of First Nations in Fredericton in July that the government didn’t have “a clear understanding of just what consultation means.” 

He told reporters at the conference, “It’s not well-defined so you don’t know when you’re done, and the timelines to achieve it.  No one is arguing the point of going through the process. It’s just, let’s understand what the process is.” 

Fracking expansion plan halted

In August, Corridor Resources said it was putting on hold its search for investors for an expansion of its operations in Sussex. It said the province wasn’t able to consider its application to lift the moratorium pending Indigenous consultations.

Corridor had extracted natural gas in the area since 1999 but suspended fracking after the previous Liberal government imposed the moratorium in 2016. 

Logan told the committee that there’s been a lot of public discussion “as to what we have to do as a minimum, what we should be doing as a norm, what we should be doing if we really want to build a relationship that we need to build with the Indigenous communities.” 

Corridor Resources, which had plans for hydraulic fracturing near Sussex, said in August it will spend its money outside New Brunswick. (Pierre Fournier/CBC)

The province’s policy on the duty to consult, available online, says the obligation exists “when the Crown is considering an action or decision that may adversely affect Aboriginal and treaty rights” under Section 35 of the Constitution. 

That includes the creation or implementation of regulations and policies that could “negatively impact the traditional use of Crown land and resources or the way a right is exercised.”

The five-page document says First Nations are also expected to participate in consultations in good faith.

Higgs complained in July that Wolastoqi chiefs that had signed an accommodation agreement with the province in 2017 about the Sisson mine were still saying they were against the project. He suggested they should return the $3 million they received from the province. 

Chief Patricia Bernard of Madawaska Maliseet First Nation said in July that agreeing to not challenge the mine in court was not the same thing as consenting to it, and did not limit her ability to say she didn’t like the project.

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