Arctic Yearbook 2015 - Page 223

223 Arctic Yearbook 2015 system” (Usher 1987: 6). No special rules for indigenous peoples govern the consultation processes, whose content, form and practice are already being criticised in Greenland, as mentioned in the first part of the article (Olsen & Hansen 2014). Such legal pluralism also creates uncertainties when it comes to compensation rights. In case of an oil spill in Greenland, it is unclear how hunters without a licence (when their income from hunting is less than 50% of their gross income) could get compensation rights.13 Non-governmental actors interacting with states and international regimes Strong private actors (multinational and transnational, as well as national and local companies) can design norms to manage offshore activities. Approaches to regulation can be characterised as either prescriptive or as performance-based (goal-based) (DNV-FNI 2012, Baker 2012). Many regulatory regimes for offshore drilling include elements of both approaches. A prescriptive approach, which is how the US approach is mainly designed, gives a fixed check list of things that must be done to meet a statutory requirement. Performance-based or goal-based regulations identify outcomes, but allow companies considerable flexibility to determine how they will proceed. The EU Offshore Directive advocates the goal-setting approach that was first adopted by the North Sea countries. With the use of a goal-setting approach in the regulation, companies are required to continually demonstrate that they are taking measures to minimize the r isk of oil and gas releases to as low a level as reasonably practicable. Such an approach enables companies to adapt their management to new and safer standards without having to wait for the legislation to incorporate such standards (DNVFNI 2012: 21; Dagg et al. 2011). This regulatory design raises the issue of corporate social responsibility (Mikkelsen & Langhelle 2011). Indeed, the failure to adequately manage risks, as assessed in the Kulluk rig case (United States Coast Guard 2012), could have disastrous consequences. Some observers deem that the real effect on behaviour does not lie in the regulations themselves, but in the way in which the meeting of the goals regarding minimization the risks established by the regulations can be met to avoid what Carson identified as an “institutionally tolerated non-compliance” (Carson 1981). In this perspective, it is important to note that some normative authorities as well as advisory bodies are not necessarily prone to accept such tolerance. In Canada, the National Energy Board remains the regulator of oil and gas activities offshore, operating under existing federal legislation and with quasi-judicial powers, and the rights and privileges of a superior court, as established by the National Energy Board Act: its decisions are all enforceable in law.14 This applies to all offshore hydrocarbon activities in Canadian territories, even when a devolution agreement on resources development has been established. The situation in Greenland is different, because here an advisory agency, the Danish Center for Environment and Energy (DCE) – the former National Environmental Research Institute (NERI) at Aarhus University – provides consultancy services to the Greenlandic government, i.e. to the Environment Agency for Mineral Resources Activities in connection with the production and transportation of minerals and petroleum in Greenland. DCE provides recommendations. The Environment Agency for Mineral Resources Activities cooperates closely with the DCE to implement the provisions of the Mineral Resources Act stating that assessments and decisions of the Mineral Cécile Pelaudeix