Creating the Conditions for Meaningful Reconciliation with Indigenous Peoples

Creating the Conditions

for Meaningful Reconciliation with Indigenous Peoples

- By Channa S. Perera -

Vice-President, Regulatory Affairs & Best Practices, Canadian Electricity Association

The Legacy

It is not a secret that Canada’s Indigenous Peoples have suffered for centuries. From systemic racism and discrimination to lack of access to affordable housing and clean energy, Canada’s Indigenous communities have, and continue to, endure many hardships. But we must not let this go unchecked. We all have a responsibility to act, and act now towards genuine reconciliation with Indigenous Peoples. What does that really mean, you might ask? How can you do your part?

Reconciliation is a journey that requires a multitude of “actions” by individuals, companies, governments, and legal institutions. These could range from addressing cultural competencies at an individual level to large-scale government measures, such as the acknowledgment of past injustices against Indigenous Peoples; negotiation of modern treaties and land claim agreements; enabling self-determination; and facilitation of Indigenous self-government. Without a doubt, these are inherently complex issues, but the time has come for us to take meaningful action. While the legacy cannot be erased, we can learn from our past mistakes, challenge the status quo, and create the “conditions” for future success and reconciliation.

Working Towards a Better Future

Canada’s relationship with Indigenous Peoples continues to evolve and prosper, albeit not without contention at times. The recognition and affirmation of Indigenous rights and title under Section 35 of the Constitution Act, 1982 was a turning point in Canada’s relationship with Indigenous Peoples, and provided the foundation for creating the “conditions” for reconciliation.

In fact, since then, we have seen an exponential growth in learning about Indigenous culture, values and traditions, their inherent and existing rights and title to land, and how we can effectively work together as partners.

This desire to learn more about Indigenous Peoples and their culture has had a beneficial effect on the electricity industry. Relative to the distant past, electricity industry workers today are much more culturally competent; understand the cornerstones of Indigenous rights and title; appreciate the connection of Indigenous Peoples to their land; and most importantly, respect Indigenous worldviews, especially their Seven Generation approach to decision-making. Learning and respecting these fundamentals have led to a range of mutually beneficial electricity industry initiatives, including meaningful early consultations with local Indigenous communities; joint business ventures and equity partnerships; access to employment, education, and training opportunities; supply chain procurement and contracts; and intercultural competency training for management and staff, among others. Many of these initiatives are also listed in CEA’s 2020 compendium of member Indigenous engagement initiatives, “Taking Action: Collaborating with Indigenous Communities”.

The future of the electricity industry’s relationship with Indigenous communities is bright. According to the 2020 report “Accelerating Transition” by Indigenous Clean Energy (ICE), there are nearly 2,500 Indigenous-affiliated clean energy projects in operation or planning stages, including 197 medium-tolarge renewable generation projects. These projects represent another potential pathway for reconciliation with Indigenous Peoples. Looking ahead, the Conference Board of Canada also estimates that the electricity industry will need to invest roughly $1.7 trillion by 2050 to ensure a resilient, low carbon energy future. This unprecedented investment our industry must undertake represents a tremendous opportunity for Indigenous communities. We need to ensure Indigenous communities become partners in securing their own energy future.

While the future holds much potential, there remains a lot of work to be done. We need sustained support from all levels of governments, including clear and unambiguous expectations around Indigenous consultation and engagement in major projects.

We need provincial governments and their energy regulators to allow companies to expand to northern and remote areas despite the lack of critical mass. All these measures are crucial, as access to clean, safe and reliable electricity is a precursor for clean water, better education, improved health care, increased economic development, better employment and, ultimately, a better quality of life for many Indigenous communities.

Working within Canada’s Constitutional Framework

While the Indian Act remains one of the most wide-ranging federal statutes governing Indigenous issues, Canada has a unique relationship with Indigenous Peoples based on constitutionallyprotected rights, which were recognized and affirmed under Section 35 of the Constitution Act, 1982. While these rights are not defined in the Constitution, legal jurisprudence both prior to, and after, the repatriation of the Constitution has clarified the scope of Indigenous and treaty rights and title in cases such as Calder et al. v. B.C. Attorney General (1973) and R. v. Sparrow (1990). While legal jurisprudence related to Indigenous and treaty rights continue to evolve, there is much to be done to reconcile with Indigenous Peoples. The Royal Commission on Aboriginal Peoples (RCAP) and the Truth and Reconciliation Commission (TRC) have suggested several ways to pursue genuine reconciliation since the 1990s. In 2015, the TRC called upon the Government of Canada, on behalf of all Canadians, to jointly develop with Indigenous Peoples a Royal Proclamation of Reconciliation, which would also adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as the framework for reconciliation. After nearly six years since the TRC Calls to Action was published, the federal government is currently moving forward with the implementation of UNDRIP through Bill C-15, which is similar – but with several key differences – to the legislation adopted in 2019 by the Government of British Columbia.

While the goals of UNDRIP are laudable and will continue to have interpretive value to guide statutory and common law, the federal government’s implementation legislation is not without its flaws, including how it would affect Canada's duty to consult Indigenous Peoples as established by jurisprudence with respect to Section 35 of the Constitution Act, 1982. The proposed legislation fails to provide appropriate “interpretive” guidance on many key issues, which could potentially have detrimental effects on Canada’s reconciliation journey. In creating the “conditions” for reconciliation, the federal government must confirm and not confuse or erase existing Canadian jurisprudence that is foundational for reconciliation with Indigenous Peoples.

The Path Ahead

While Canada’s legacy on Indigenous issues is disappointing to say the least, the path ahead provides a sliver of hope. There is now an “aura” of reconciliation in Canada driven by proactive actions by individual Canadians, businesses, governments, legal institutions, and others in civil society. We must fully embrace this historic opportunity and help usher an era of reconciliation based on recognition of Indigenous rights, self-determination, and self-government as the cornerstone of change. And we must do so within our unique constitutional framework that has already recognized and affirmed Indigenous rights.