UNDRIP as a Framework for Reconciliation in Canada: Challenges and Opportunities for Major Energy and Natural Resources Projects

Abstract

The advancement of reconciliation with Indigenous peoples in Canada has had a significant impact on the approval of energy projects since the introduction of section 35 of the Constitution Act, 1982. The legal concepts of consultation, accommodation, and consent have pushed the boundaries of our existing regulatory regimes and challenged the way we think about administrative processes. The move toward the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada, including the concept of “free, prior and informed consent,” is certain to further push those boundaries as governments advance reconciliation with Indigenous peoples. In canvassing current legislative, proposed legislative, and policy developments across Canada — in particular, recent legislative changes in British Columbia — there appear to be different models developing for incorporating UNDRIP into Canadian law. These models range from express requirements in relation to Indigenous consent on major project approvals, to more flexible frameworks that will enable governments to address UNDRIP incrementally over time. Ultimately, many important questions remain with respect to how UNDRIP will impact energy development in Canada.