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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