Utrecht Law Review (May 2023)
Conflict, Constituent Power and Institutional Legitimacy in the Canadian Oil Sands
Abstract
Much has been written about the loss of trust and issues concerning ‘social license to operate’ (SLO) in relation to the Canadian oil sands, raising questions about whether there is a crisis of legitimacy. This article considers the implications of constituent power and the democratic constitutional theory advanced by Colón-Ríos for the legitimacy of modern oil sands institutions. Building upon Colón-Ríos’s theory, this article proposes the examination of constituent power as an analytical approach to understanding institutional legitimacy in resource conflicts where legitimacy is contested. In other words, where the exercise of constituted power raises questions of legitimacy, this ought to trigger an examination of the democratic legitimacy of the overarching constitutional regime by reference to constituent power. If there is a democratic deficit in the formation of the constitutional regime that empowers them, it may be difficult to defend the regulatory bodies responsible for administering the oil sands as normatively legitimate. This article does not aim to draw broad conclusions about the legitimacy of oil sands governance institutions or the Canadian constitutional regime per se. Rather, it sees the contested nature of legitimacy as a potential indicator that difficulties in resolving oil sands conflicts may stem from the existence of deeper systemic issues relating to the constitutional regime in which the institutional framework is embedded. Focusing on constituent power theory to examine the democratic legitimacy of the overarching constitutional regime may serve an explanatory role, perhaps shedding light on why democratic approaches are not reflected in oil sands decision-making. It might also further clarify why popular acceptance of the system of governance remains in question, particularly by some Aboriginal communities, and why public stakeholders have struggled with having their concerns addressed appropriately. Such an examination may reveal the true extent of the democratic deficit and, therefore, provide a deeper understanding of the legitimacy issues that oil sands institutions might face when determining ways to improve governance, particularly where there are demands for more deliberative, democratic decision-making. This analytical approach may also potentially be valuable in institutional contexts other than oil sands and resource governance.
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