Federal duty to consult and accommodate Indigenous Peoples on Energy East explained

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Adam Bond

The federal government’s plan for consulting Indigenous Peoples adversely affected by the proposed Energy East pipeline may meet the minimum requirements of the constitutional duty to consult and accommodate concludes Elizabeth Harrison, the Summer Fellow with Nature Canada this past summer and law student at the University of Ottawa. Whether the government’s approach respects the principles of the United Nations Declaration on the Rights of Indigenous Peoples remains to be determined.

In her paper, Harrison provides a thorough review of the government’s legal duty to consult and accommodate Indigenous Peoples potentially impacted by government decision making. You can read her paper by clicking here.

Harrison explains that the Supreme Court of Canada’s decisions have gradually clarified the government’s duty to consult based on indigenous rights under section 35 of the Constitution. Harrison’s review of this case law explains that the government has a duty to uphold the “honour of the Crown” in its dealings with Indigenous Peoples, and this includes consulting and, where appropriate, compensating Indigenous Peoples where the government makes decisions that may adversely impact indigenous rights.

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Though Parliament may delegate the duty to consult on behalf of the government to administrative bodies and tribunals, such as the National Energy Board, the government is ultimately responsible for ensuring that the consultation and accommodation is adequate in the circumstances. In the case of Energy East, the government has committed to deeper, nation-to-nation consultation processes.

Harrison notes that the government’s consultation plan for the proposed Energy East project is extensive and involves a number of consultation coordinators, staff from the federal and provincial governments, processes for identifying all potentially impacted indigenous groups, additional participant funding, and commitments to meet with indigenous groups throughout the NEB’s Energy East hearing process as well as further consultation efforts after the NEB issues its report.

While Indigenous Peoples have very serious concerns with the efforts and approaches the government has taken to consultation regarding the proposed Energy East project, Harrison concludes that the government’s current consultation plan likely satisfies the legal duty to consult.

Whether the government’s consultation process satisfies its assumed obligations under the UNDRIP, remains an important question but one that Harrison explains is beyond the scope of her paper.

Of course, this may all be moot given that TransCanada has now cancelled the Energy East project; however one can safely predict that issues relating to how governments consult and accommodate Indigenous Peoples will continue to arise with respect to future resource development projects.

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