How the Indigenous Advisory Committee will affect major infrastructure projects

On Feb. 18, the Canada Energy Regulator announced the mandate of its Indigenous Advisory Committee. According to the CER, this committee will comprise only Indigenous members. It will play “a key advisory role to the [CER board of directors] on how best to enhance the involvement of Indigenous peoples and organizations in respect of CER-regulated infrastructure and other matters.”

This new committee, and other factors such as implementing the United Nations Declaration on the Rights of Indigenous Peoples in federal and provincial law, will affect Indigenous involvement and engagement in major projects and infrastructure and get energy projects approved.

The new IAC mandate should achieve “a more informed regulatory body, which will eventually translate to the regulated community and even the general populace,” says Scott Stoll, a partner in Aird & Berlis LLP in Toronto, whose practice includes energy, First Nations and infrastructure.

“The mandate will hopefully permit the CER to improve the level of trust and legitimacy with First Nations, the Métis Nation and Inuit in how it carries out its mandate,” Stoll says.

“Improved trust will reduce challenges and uncertainty of CER decisions,” he adds. “However, it is important to recognize that this will not be developed or attained unless the IAC’s advice is actually received and incorporated into the CER’s mandates and regulatory operations in a legitimate and meaningful way.”

The IAC launched in August 2020, and its inaugural meeting took place the following month. Its overarching mandate is to advise the board on how the CER can build a renewed relationship with Indigenous peoples. It will not deal with specific CER-regulated projects, detailed operational matters or regulatory decision-making or provide advice on any particular decision, order or recommendation made by the CER’s commission.

The legislation that created the CER in 2019 required an advisory committee, says Terri-Lee Oleniuk, a partner at Blake Cassels & Graydon LLP in Calgary with a specialization in regulatory, environmental and Indigenous law issues. That legislation — Bill C-69: An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts — didn’t set out the function of the IAC. “These terms of reference are the first window into how the committee will function,” she says.

Indigenous groups have participated in energy and infrastructure projects for quite some time, either through participating in regulatory processes, through consultation with the Crown and through other monitoring committees that exist at an operational level, she adds. “The big difference with this advisory committee is that it’s not going to be functioning at an operational, project-specific level; they’re really interacting with the CER at a board level, and so the recommendations and guidance that come out of the committee are going to be on strategic and governance matters at a high level.”

One complaint by Indigenous people has been their lack of participation in environmental review processes, says Matt McPherson, a partner at Olthuis Kleer Townshend LLP in Toronto. McPherson advises First Nations and Indigenous governments and organizations across Canada. He says he believes the IAC’s role will be relatively limited as it will be “several steps back” from the decision-making process that affects First Nations.

Impact of ‘new norm’ on Indigenous engagement

Informed, regulated entities “will likely be out in front in trying to understand where the CER is going,” says Stoll. “You will see better applications and evidence coming forth demonstrating Indigenous involvement as an integral component of the design and development of major projects and infrastructure at the onset, rather than a stakeholder engagement requirement completed for regulatory applications.”

In the short term, he says, it may be harder to get projects approved “as people try to understand the boundaries of what is acceptable.” In the longer term, though, the “new norm” established by the CER and its Indigenous Advisory Committee “will likely mean shorter approval processes . . . with better acceptance and, therefore, less uncertainty,” he adds.

Oleniuk isn’t anticipating specific changes to regulatory processes. Instead, “the changes that energy and infrastructure developers in Canada are mostly going to be experiencing are how their processes will be changed to incorporate UNDRIP,” including the permitting and tribunal processes.

The implementation of UNDRIP across Canada

The UN adopted the UNDRIP in 2007, with 143 member states voting in favour of it. The Canadian government introduced Bill C-15 on Dec. 3, 2020, as the first step in adopting it.

If the government passes the bill, it would require the Government of Canada, in consultation and co-operation with Indigenous peoples, to take all necessary measures to ensure that Canada’s laws are consistent with Indigenous peoples’ rights set out in UNDRIP. The bill would also require the government to develop an action plan to achieve its objectives. British Columbia became the first (and to date only) jurisdiction in Canada to implement UNDRIP — which the Truth and Reconciliation Commission has confirmed as the framework for reconciliation — in passing the B.C. Declaration on the Rights of Indigenous Peoples Act in November 2019.

Some concern lingers over the practicalities of implementing UNDRIP across Canada from coast to coast to coast. Thomas Isaac, a partner at Cassels Brock & Blackwell LLP in Vancouver specializing in Aboriginal law, says UNDRIP contains approximately 74 paragraphs that do not align with Canadian law. He also points out that UNDRIP doesn’t contain any term around Aboriginal title and that that concept doesn’t exist in UNDRIP.

“Ownership over land does, and the right to get the land back if it was part of your traditional territory, [but] that doesn’t align with Canadian law where you have to prove title. So, how are we going to make every law consistent with that?” asks Isaac.

UNDRIP includes the concept of free, prior and informed consent by First Nations affected by a nation’s laws and administrative measures. Isaac says the B.C. government’s definition of consent in UNDRIP doesn’t align with the common understanding of consent.

Questions have also been raised over whether UNDRIP would give Indigenous peoples — First Nations, Inuit and Métis — the right to veto energy and infrastructure projects. McPherson calls this idea “a straw man.”

A veto does not mean that one side “can unilaterally, without reason, say no to things,” he says. “Consent is about process and means you are informed and are able to consent to something happening.

“Part of what underpins that idea is that First Nations governments are inherently more unreasonable than provincial, federal or municipal governments,” he continues. Indigenous peoples must also follow the principles of administrative law and cannot withhold consent unreasonably, “so the idea that it’s a straight-up veto . . . is just not accurate. First Nations aren’t able to say no in any circumstance.”

The Supreme Court of Canada has articulated the need for both parties to come to the table from a reasonableness position, he says, in Mikisew Cree First Nation v. Canada and Haida Nation v. British Columbia.

But “there needs to be actual compromise, and that in my view is something that’s frequently missing,” he says. “The position of many First Nations is that they have been doing almost all the compromising for 150 years plus and would now like the Crown and proponents to start doing compromising themselves.” 

Backgrounder on Bill C-15

• The bill to implement the United Nations Declaration on the Rights of Indigenous Peoples is currently at first reading
• Once passed, this legislation would require the Government of Canada, in consultation and co-operation with Indigenous peoples, to:

• take all measures necessary to ensure the laws of Canada are consistent with the  UNDRIP
• prepare and implement an action plan to achieve the UNDRIP’s objectives
• table an annual report on progress to align the laws of Canada and on the action plan

Role of the Canada Energy Regulator’s Indigenous Advisory Committee

• Contribute strategic advice and perspective on how the CER can make meaningful progress toward reconciliation in Canada
• Promote opportunities for systemic change through building and strengthening new relationships with the CER’s board of directors and staff
• Leverage their experience with the energy or natural resource sector in providing advice
• Share Indigenous values and teachings as a respected voice of their communities, and integrate Indigenous perspectives into the CER’s strategies, plans and actions

Source: Department of Justice Canada