Achieving true consultation

Courts have emphasized that the Indigenous consultation standards on both governments and proponents of pipeline and other infrastructure projects are high but achievable

Last winter, a series of solidarity protests began to ripple across Canada in support of the Wetʼsuwetʼen hereditary chiefs who had been blockading Coastal GasLink Pipeline construction camps in Wetʼsuwetʼen territory in British Columbia.

The chiefs were opposed to the construction of the pipeline through their traditional territory, and the blockades and protests continued through March in British Columbia, Ontario and Quebec. Discussions between representatives of the Wetʼsuwetʼen and the governments of Canada and British Columbia eventually led to a provisional agreement on the Wetʼsuwetʼen land rights in the area.

The blockades and protests, which targeted railway lines, had lasted nearly three months by then and caused cancellations of Via Rail trains in the Toronto-Montreal and Toronto-Ottawa corridors, as well as significant disruptions to Canadian National Railway and Canadian Pacific Railway commercial services and to TC Energy’s construction of the pipeline.

“Clearly, this is a challenging time for major infrastructure projects in Canada,” says Keith Bergner, a partner at Lawson Lundell LLP in Vancouver.

“The courts have emphasized that the standards on both proponents and governments are, quite properly, very high. But it's also become clear through various court decisions that the standard is not an unachievable one. It's not a veto. It is a high standard but an achievable standard.”

In February, the Federal Court of Appeal dismissed an appeal by Indigenous groups that challenged the federal government’s approval of the Trans Mountain Pipeline expansion through Alberta and British Columbia, a decision upheld by the Supreme Court of Canada in July. The proposed expansion by proponent Kinder Morgan had faced years of court challenges, and three insurers of the project had withdrawn their support.

The FCA found that the duty to consult in the case had been discharged, and Bergner sees the decision as an example of standards for Indigenous consultation being achievable. “Major infrastructure projects can still be approved.”

Still, the political and economic landscape for energy infrastructure projects is uncertain, says Emil Vidrascu, a partner at Dentons Canada LLP in Montreal. That’s largely because of the economic crisis triggered by the COVID-19 pandemic, he says, as well as the compounding effect of other factors such as the high expectations of First Nations created by the attention and support generated by various federal initiatives, namely consultations and public inquiries.

These include the Truth and Reconciliation Commission, the National Inquiry into Missing and Murdered Indigenous Women and Girls and, in Quebec, the Commission Viens (Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec), which recently issued more than 100 recommendations to government to take action to improve relations between police and Indigenous peoples.

Another unknown, Vidrascu says, is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN in 2007 with 143 member states voting in favour of it and which the federal government has promised to adopt.

UNDRIP includes the concept of free, prior and informed consent of First Nations affected by a nation’s laws and administrative measures “and brings across a lot of unknowns as to how a future federal act would deal with this,” he says. Would there be a veto right to projects?

British Columbia’s new Environmental Assessment Act, which came into force in December, “talks about consent by Indigenous peoples to projects,” says Sam Adkins, a partner at Blake Cassels & Graydon LLP in Vancouver. “But consent doesn’t mean veto or a single Indigenous group opposed to a project doesn’t mean it won’t go ahead.”

Projects such as the Coastal GasLink pipeline in B.C., covering over 700 kilometres, affect many communities. This project ended up in the news because of Indigenous opposition, says Adkins, “but a lot said they did want the project. I think increasingly energy projects have ‘coalitions of the willing’ that want these projects built. Coastal GasLink is an example of a project being built properly . . . for LNG Canada,” he says, noting that it was originally approved in 2014 and has been under construction since 2018.

Indeed, a trend toward partnering with First Nations has included transmission lines in Ontario increasingly owned by First Nations and more buy-in to Alberta oilsands as well, Adkins says.

Vivek Warrier of Bennett Jones LLP in Calgary points to the Alberta government’s formation of the Alberta Indigenous Opportunities Corporation, which will assist First Nations in taking equity-related positions in energy-related projects.

“Project development across Canada has included consulting with Indigenous peoples; what better way to do that [than] to have the provincial government assist with that?” says Warrier.

In any infrastructure project, “the role and participation of Indigenous groups . . . is going to be fundamentally important,” says Valerie Helbronner of Torys LLP in Toronto.

British Columbia has already implemented the B.C. Declaration on Rights of Indigenous Peoples Act, which commits the province to aligning itself with the UN declaration. Since 1982. Indigenous rights have been protected under s. 35 of the Constitution and, Adkins says, Canada is “one of the few countries in the world that [has] protected Indigenous rights.”

But one of the challenges in bringing in new federal standards is what they would mean for a large, diverse country such as Canada, he says. What do those standards mean in practice? “We need to work through how we balance meaningful protections in Indigenous rights to broader public projects like pipelines.

“Courts will have to look at all of this and say, ‘What does it mean to incorporate a consent right into our environmental assessment process? What factors does the environmental assessment office in B.C. have to consider when deciding to go ahead, even in the absence of consent from Indigenous people? Those types of questions, I think, will ultimately end up back in the in the court, but at this stage it’s being driven by legislation and policy” and less so by case law.

The Wet’suwet’en protests raise the question of who needs to be consulted, says Vidrascu. Should it be the band council? These were created under the Indian Act to administer the reserves. Or is it traditional representatives by traditional rules and customs? In the Wet’suwet’en contest, the band supported the Coastal GasLink pipeline project but the hereditary chiefs didn’t.

“That’s a question that should go to the courts some day: Who should be consulted?”Vidrascu also cites questions such as what are the rights of traditional First Nations families with respect to consultation projects; when a right or title is collective, “who should you talk to? That will probably have to be clarified by the courts, but, otherwise, the duty to consult has been the object of 20 years of case law and has been clarified quite a lot.”

The decision in Delgamuukw v. British Columbia was rendered by the Supreme Court in 1997, followed by the landmark Haida Nation v. British Columbia (Minister of Forests) in 2004. Coldwater First Nation v Canada (Attorney General), rendered this year, was the Federal Court of Appeal dismissal of Indigenous groups’ appeal to stop the Trans Mountain Pipeline expansion.

The Coldwater case is important in that it clarifies how the duty to consult needs to be performed in certain circumstances, since it derives from the honour of the Crown. In its judgment, the FCA indicated that the requirements to consult are “not as stringent as we thought it would be; it's based on reasonableness, and no specific outcome to be reached.” The duty to consult doesn’t grant veto rights to oppose projects, and even in cases where deep consultation has occurred, the Crown is not obliged to reach an agreement with First Nations.

“It doesn’t impose a standard of perfection,” and courts do not need to become “an academy of science and look in detail at the scientific evidence.”

Vidrascu says that if the federal government applies the same wording that UNDRIP uses — “free, prior and informed consent” of First Nations to projects affecting them — it would overturn the Mikisew Cree First Nation v. Canada (Governor General in Council) ruling of 2018.

“The SCC held that the duty to consult does not apply to legislation,” so the federal government would not have to consult First Nations before adopting legislation that affects them, he says.

“That would be a huge new thing, if the federal government was obliged to consult each and every time they draft a bill. Currently, they have to consult when they approve a project that impacts on the First Nations’ asserted or proved rights. So, that’s going to be a huge thing if the government keeps its promise to adopt” UNDRIP.

New Conservative party leader Erin O’Toole has promised a National Strategic Pipelines Act, which would allow the federal government to identify national strategic pipelines and subject the projects to expedited reviews if declared of national strategic interest. This would remove authority from the provinces to approve projects and may lead them to contest the act, Vidrascu says.

“That’s going to be almost certainly challenged by the provinces on a constitutional basis.”


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