By Heather Exner-Pirot and Martin Ignasiak
February 15, 2023
For over a century, Indigenous rights were routinely ignored or dismissed in favour of moving resource projects forward, often with damaging environmental and social consequences. However, a significant shift has occurred because of the affirmation of the duty to consult: the obligation of the Crown to consult and accommodate Indigenous groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights.
The trilogy of Supreme Court decisions in 2004 and 2005 affirming this duty to consult provided clarity to, and significantly bolstered, Indigenous rights. Government agencies and departments seeking to approve projects that had a potential impact on Indigenous rights now had to ensure that their approval was consistent with this newly elevated legal standard. Those seeking to delay or cancel resource projects often relied on Indigenous rights to oppose proposed projects through legal action.
The strengthened legal standing of Indigenous communities, however, is not restricted to rejecting plans for resource development in their territories; it means they can support them as well. Many Indigenous communities have determined that it is in their interests to pursue economic benefits through resource development in the form of royalties, payments, employment, business contracts, and even equity positions. They are now turning to the Courts to protect those interests, and are starting to find success. Three recent cases exemplify the trend:
- Ermineskin Cree Nation v. Canada (Environment and Climate Change) (2021 FC 758)
- AltaLink Management Ltd v Alberta (Utilities Commission) (2021 ABCA 342)
- Reference re: Impact Assessment Act (2022 ABCA 165)
Through an examination of these cases, this paper argues that Indigenous rights are evolving from being a shield for proponents (in the sense that their consent and support simply reduced the risk of a legal challenge based on Indigenous rights) towards Indigenous rights as a sword for proponents, including Indigenous proponents (in the sense that Indigenous consent and support for projects within their traditional territory can limit the ability of provincial and federal governments to reject those projects in favour of other policy considerations).
It concludes by suggesting that while the concerns of Indigenous communities opposing a development have been the focus of legal and political attention, it must now be recognized that Indigenous support for a project, based on the economic benefits and advancement the project provides, should be subject to the same constitutional deference as the traditional rights to hunt and trap.