Respecting both "Due Process" and the “Duty to Consult"
by
Dave Harbour
Canada's "Duty to Consult" (1,2) and America's similar concept are not and should not be just legal requirements for natural resource companies. Consultation is a basic principle of good communications, responsible corporate citizenship, or, at the least, enlightened self interest.
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A serious, fair minded man, he was one of the first counselors to begin publicly speaking about the importance of Canadian project managers communicating in good faith with local stakeholders.
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We have known and respected the work of 
Of his book (NGP Photo with our Alaskan To consult, cooperate and communicate with the public in general and stakeholders specifically, is a responsibility to shareholders and the obligation of a responsible project manager — as we have discovered in both Alaska and Canada.
In short, project consultation with all relevant parties is as important to the success of an investor's project as good design, engineering and construction.
Corporate managers who fail to embrace this reality will be more likely to take superbly engineered project blueprints to their graves than to ribbon cutting ceremonies.
On the flip side, stakeholders who take advantage of project managers through intimidation or by making unreasonable demands can, likewise, kill projects that would otherwise sustain local, regional and even national economies and families.
Thus, an effective process of consultation can only work well in an honestly regulated environment where the government and all parties respect due process and the rule of law is faithfully upheld.
We would add this opinion.
Good project managers should always consult with local stakeholders. The relatively little time and money spent in demonstrating friendship, open communication and good corporate citizenship ultimately saves shareholder dollars and minimizes dispute.
However, when the common sense requirement of good communication becomes a legal "duty" (i.e. applied differently in the US and Canada) complete with years of court precedent, two phenomenon may begin to occur. First, investors can become tempted to invest minimally in good communication and for the primary purpose of meeting the letter of the law. Second, distant stakeholders, like environmental and social activists may attempt to use the legal "duty" of consultation as a tool to delay or block projects for political, fundraising or other reasons.
In Alaska's case, the Pebble Partnership mining project has provided jobs and economic support to local communities while investors develop a mining plan upon which it can base future permit applications. Though the project did not labor under a "duty to consult" law exactly like Canada's, it did recognize that surviving a challenging permit process would require local stakeholders to be both knowledgeable about and beneficiaries of the project. The project's public outreach program has been exceptionally executed.
The permit process to follow, would then allow public comment on each phase of the project as it pursued the permitting requirements. A final decision on the permit applicant's project would be based on an objective review by regulators of the record of evidence collected from filings and testimony. That decision, in turn, can be administratively appealed or appealed through the court system. This is known as "due process", a key provision of America's 'Rule of Law', memorialized in the 5th and 14th Amendments of the US Constitution.
The Pebble mining project would occur on Alaska state lands leased to the partnership. But after one lodge owner began spending millions of dollars to oppose the project — in concert with environmental activists and some local residents — the Environmental Protection Agency (EPA) stepped in and is now in process of attempting to preemptively block the project. No application exists, nor does a record of decision based on an application; and, the potential applicant holding valid Alaska state leases is denied an opportunity to appeal a decision on an actual application based on a record.
The EPA rational is based on grounds that the project could cause environmental harms that it imagines will occur even before the project has filed for a permit and been allowed its constitutional right of due process.
But if the EPA can preemptively strike down a mining project without allowing it due process, no highway, oil and gas, municipal utility, agricultural, transportation or commercial fishing project is safe from a preemptive, arbitrary and/or capricious government shutdown.
Yes, we strongly support local stakeholder consultation by project investors. We also caution our fellow citizens that to properly balance opposing viewpoints, an impartial government regulator is essential.
If citizens either in Canada or the United States perceive that regulatory authorities do not base decisions on an objective legal record achieved through due process, the rule of law itself is jeopardized.
When the rule of law disappears, civilization devolves into a chaotic state wherein "Might Makes Right", as the Romans found in the 5th Century and as Germany taught the world in the 1930s through WWII.
We hope that alert citizens throughout North America will choose to support good communication and win-win outcomes between natural resource wealth producers and local citizens.
But we acknowledge that this will not be possible without courts of law, legislative bodies, presidents and prime ministers who are able to overcome political temptations and consistently support the rule of law — and the due process upon which it depends — to produce just and reasonable decisions.
In that way, perhaps we can pass down to our children a society that rests on solid, ethical standards demonstrating that, indeed, "Right Makes Might".
Predecessors, like Abraham Lincoln (NGP Photo), passed that legacy to our our later generation when he said in the great Cooper Union Address, "Let us have faith that right makes might, and in that faith, let us, to the end, dare to do our duty as we understand it."
If we and our leaders properly discharge our Constitutional obligations as we understand them, perhaps our children will look back and say of our generation that, "They protected for us, the great legacy of the rule of law, wherein doing the 'right' thing makes a country 'mighty'."
Yes the duty to consult with one another is both right and good business. But even more important is the duty to maintain a nation and society of well observed laws and the protection of due process.
Thanks to BP's Julie Hasquet, we hear that the Alaska LNG/Pipeline project will provide community project briefings next week (i.e. very timely with respect to our commentary today.)
We encourage our NGP readers to attend one of these community meetings to learn more about the Alaska Liquefied Natural Gas (LNG) project.
In Anchorage
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When: |
6-8 p.m., Tuesday, July 15 |
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Where: |
William A. Egan Civic & Convention Center |
In Fairbanks
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When: |
6-8 p.m., Thursday, July 17 |
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Where: |
Wedgewood Resort – Gazebo Room |
The Alaska LNG team will provide a project overview and share information about current studies. It will be an opportunity to both hear about and comment on the project.
Happily, sponsors will provide refreshments.
Here is Senator Cathy Giessel's (NGP Photo) 5-year Lease Sale Comment Letter. 
We encourage all of our readers — throughout the country — to comment as well by the July 31 deadline! Here's how.
In her letter of July 8, 2014, Senator Giessel wrote:
Ms. Kelly Hammerle
Five Year Program Manager
BOEM (HM–3120)
381 Elden Street
Herndon, Virginia 20170
Dear Ms. Hammerle:
Alaska is fortunate to be an important contributing part of our nation’s leading role in global oil and natural gas production. Our nation has the opportunity to continue to be an energy leader if the Bureau of Ocean Energy Management (BOEM) adds currently unavailable offshore areas, such as Alaska, the Atlantic, and the Gulf of Mexico to the upcoming 2017-2022 Five Year Plan.
These additions would further boost our nation’s economic and energy security as well as create much needed tax revenue. Alaska has experienced the continued benefit of increased jobs and revenue from oil and natural gas development, and I believe that every state with these natural resources should have the opportunity to benefit from the same economic gain. Equally important, as part of the United States of America, other states should be contributing to our nation’s economic and energy growth and not remain stymied by policy barriers.
I am a strong supporter of protecting our environment; Alaska, with its refined application and permitting process, is an example that oil and natural gas can be developed in a way that protects both people and its ecosystems. Therefore, I am confident that energy companies and other states will utilize the same best practices, standards, and regulations that are in place to safely develop offshore oil and natural gas resources.
I applaud our Congressmen for passing a bi-partisan bill, the “Lowering Gasoline Prices to Fuel an America That Works Act” to support offshore oil and natural gas development and support whatever means are available to move this economic opportunity forward.
I would appreciate your consideration and urge BOEM to include currently unavailable offshore areas, such as Alaska, the Atlantic, and the Gulf of Mexico in the upcoming 2017-2022 Five Year Plan. We must continue to generate jobs and revenue to rejuvenate our nation’s economy and decrease our reliance on foreign energy sources.
Sincerely,
Senator Cathy Giessel
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