Reconciliation and Indigenous Law: What’s New?

Blake, Cassels & Graydon LLP

The law on Indigenous rights and interests in Canada continues to evolve based on court decisions and government policies and legislation. It’s important that businesses are aware of new developments and their implications, and ensure that their operations, reporting and policies are aligned.

Below are some highlights from recent Indigenous-related court decisions and government updates that businesses should be aware of:

  1. Private Property. There is growing tension between the protection of Indigenous rights and the preservation of private property, as seen in the B.C. Supreme Court decision in Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc. When Indigenous rights conflict with private property interests, laws relating to the ownership of land must reconcile Crown sovereignty and Indigenous rights.

  2. ESG Considerations. Interest in ESG is increasing in the private sector, and companies must consider Indigenous issues as a key part of their ESG values and disclosures. Companies that convey meaningful Indigenous partnerships, participation, inclusion and reconciliation will have a strategic advantage as Canada continues its reconciliation efforts.

  3. Pipeline Regulation. The Canada Energy Regulator (CER) recently released a discussion paper on the review of the Onshore Pipeline Regulations, which govern CER-regulated pipelines. The paper seeks input on how regulated companies can collaborate with Indigenous communities over the full pipeline lifecycle to advance reconciliation. Input on the discussion paper is due at the end of June 2022.

  4. Duty to Consult. In two recent cases concerning coal-mining projects in Alberta, the “duty to consult” argument was a central theme. The cases had different results, but the courts made it clear that governments must consider the interests of First Nations that support a project (not just those that oppose) and that, in turn, Indigenous Nations are responsible for making courts aware of their stance on a particular project.

  5. Cumulative Effects. In Blueberry River First Nations (Yahey) v. Province of British Columbia, the court determined that the cumulative effects of the B.C. government’s resource development in Blueberry traditional territory were significant and in breach of the First Nation’s treaty rights. As a result, the B.C. government was prohibited from issuing permits in this area without Blueberry consent. This decision will likely have ripple effects across Canada.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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