Indigenous peoples and the evolving legal jurisprudence

State of the Canadian Electricity Industry 2022 Accelerate Net Zero

Theme 4 Time to Accelerate Reconciliation with Indigenous Peoples

While the Indian Act remains the most wide-ranging federal statute governing Indigenous issues, Canada has a unique relationship with Indigenous peoples based on the rights recognized and affirmed under the Constitution Act of 1982. Although the Constitution did not define these rights (as per the specific provisions in the side bar), the subsequent legal jurisprudence has further clarified the scope of these Indigenous rights and title in Supreme Court cases such as R. v. Sparrow.47 In another landmark case, in 2021, Yahey v British Columbia, 48 the British Columbia Supreme Court recognized an infringement of treaty rights resulting from the cumulative effects of various energy projects previously approved by provincial regulatory authorities.

Electricity Sector Priorities on Indigenous Relations

• Project partnerships/joint ventures • Education, training and employment • Supply chain procurement • Cultural awareness training for management and staff • Community investments • Meaningful and early consultation • Clean and affordable energy solutions While the electricity industry welcomes legal and regulatory clarity, it is equally important for the federal government to pursue genuine reconciliation with Indigenous peoples. The Royal Commission on Aboriginal Peoples (RCAP) and the Truth and Reconciliation Commission (TRC) have suggested several ways to pursue reconciliation since the 1990s. In 2015, the TRC called upon the federal government, on behalf of all Canadians, to 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, the federal government finally adopted legislation to implement the UNDRIP. The legislation was similar to that adopted by the Government of British Columbia in 2019.

The electricity industry supports the overarching principles outlined in UNDRIP and recognizes that many of the implementation provisions within it must be directly negotiated between the federal government and Indigenous peoples. However, the federal government’s UNDRIP implementation legislation, passed in 2021, was not without its flaws. One flaw is how the legislation would affect Canada's duty to consult Indigenous peoples, as established by jurisprudence with respect to Section 35 of the Constitution Act of 1982. The proposed legislation failed to provide appropriate “interpretive” guidance on many key issues, including how best to implement the provision on free, prior, informed consent, which could have detrimental effects on Canada’s reconciliation journey.