What does it mean to be "consulted?" Does it mean to give an opinion and to be heard? To have your views prevail? To exercise a veto?
We don't know, and as a result of this, much confusion surrounds public decisions, especially for projects that require this amorphous idea of "consultation" or "social licence" to proceed.
Who defines "social licence?" Interest groups such as NGOs or businesses? Courts? Public opinion, but as measured by what? Polls? Write-in campaigns? Social media comments? Street demonstrations? Elections?
The confusion about "consultation" and "social licence" deepens when it comes to Canada's First Nations. Courtesy of court rulings and depending on their title or land claim or treaty, aboriginals have to be "consulted," their interests "accommodated," and, if title is demonstrated, give their assent – except in the face of a "pressing and substantial" public interest.
What might that be, the "public interest?" Take the Northern Gateway pipeline to pump Alberta bitumen oil through northwestern British Columbia to Asia-Pacific markets.
The three-person National Energy Board panel that exhaustively studied the pipeline proposal – and supported it, with 209 conditions – declared that "the public interest is the interest of all Canadians." Except that in the next paragraph the panel said "the public interest is local, regional and national in scope." It's hard for the "public interest" to be both.
Even if that uneasy balance could be found between "all Canadians" and "local, regional and national" communities, no matter how exhaustive the process, how extensive the hearings, how compendious the research, groups will still insist they were not adequately "consulted." Which means, in fact, that they did not agree with the decision.
The NEB panel – two men (one of whom was an aboriginal geologist), one woman, all highly skilled – visited 21 communities in 180 days of hearings. They held 32 online workshops, allowed presentations by video-conferencing and telephone and received about 9,000 letters of comment (mostly against the pipeline).
Not enough, some aboriginal groups said. The government of Canada, they claimed, still had a legal duty to "consult." To which, the government pointed to the NEB process that began in January, 2010, and produced a final report in early 2014. That's consultation.
No sir, came the reply from the aggrieved (aboriginal and other) who opposed the pipeline before and during the hearings, then repeated their opposition within minutes of the panel's final recommendations. Their complaint wasn't about "consultation" in the sense of having been heard, but of being opposed to the pipeline.
Citing the proponent, Enbridge, the panel said 15 of 18 aboriginal groups in Alberta favoured the pipeline, as did 11 of 22 in B.C. Whether they were misguided to be in favour is beside the point. Aboriginal opinion was and is divided, although the opponents are by far more vocal and better-organized.
They claim, as expected, to speak for the "public interest" and for all aboriginals. They also have de facto and de jure veto power. A pipeline that crosses territories claimed by 40 aboriginal groups will be next to impossible to construct, if the right to be "consulted" means that each First Nation must give its consent on terms it negotiates.
Segments of B.C. public opinion are sufficiently hostile to or wary of Northern Gateway that Prime Minister Stephen Harper's government, usually eager do just about anything for the bitumen oil industry, greeted the panel's report with little comment and without enthusiasm.
All of which raises the question: What is the process by which a decision can be made about something like Northern Gateway, or any other project of similar scale?
Ultimately, the government of Canada has the legal power to decide. After all, the NEB does not make a final decision, but a recommendation to the government.
However, we seem to have reached a point where even the most exhaustive examination by an apparently expert panel does not provide for enough "consultation" and for "social licence" to have been achieved. If this kind of process does not cut it, has anyone got a better idea? Because the country is going to face plenty more megaprojects in the decades ahead.
You can argue that the panel ignored the fact that Northern Gateway would encourage more burning of bitumen oil and more greenhouse gases to mine it. But those issues were not before the NEB.
So the questions remain: How much "consultation" is enough? What does it mean in practice? And who should define "social licence?"