By: Emily Bonnell*
This World Water Day
we are reminded of Indigenous Peoples' ongoing fight for access to clean drinking water
in Canada, and the efforts of Indigenous nations to hold the Canadian government accountable for protecting Aboriginal** water rights under s. 35 of the Constitution Act, 1982
"). The government has a legal duty to protect the constitutional rights of Indigenous Peoples. Let's take a look at the statutes and caselaw dealing with this important issue, and how they have impacted society to date.
Canada’s laws surrounding the government’s duty to consult with Indigenous nations when planning infrastructure development through their traditional territory are unclear at best. In Canada, if the government is contemplating conduct that may adversely affect an protected Aboriginal right, then the government has a legal duty to consult with the Indigenous Peoples who stand to be affected.1
This duty to consult was established by the Supreme Court of Canada in 2004 in the case of Haida Nation v. B.C.,
and it applies whether the Crown has real or constructive knowledge of a right’s potential existence.2
The duty to consult is triggered at the very low threshold of merely possessing constructive knowledge of the right's potential existence, because it is an obligation intended to uphold the Constitution
. Existing Aboriginal rights
were recognized and affirmed in Section 35 of the Constitution
Since that time, Canadian courts have been delivering judgments meant to give substance and clarity to the Constitutional status of Aboriginal rights. Haida Nation
established that when the duty to consult arises, the extent of consultation required for the government to legally discharge their duty depends on the facts of each particular case. This uncertainty has created confusion and much social and political unrest.
A SeaSpan tugboat escorts an oil tanker carrying oil from the Kinder Morgan pipeline. - Photo by Jimmy Jeong (for The Globe and Mail)
Proposed pipeline development through traditional Indigenous lands and waters will trigger the duty to consult in most circumstances. This duty has clashed with the intense efforts Canada has put forward in recent decades to get landlocked oil and gas resources to tidewater. Increasing pipeline capacity from Alberta oil sands to Canada’s west coast would allow Canada to sell our products to overseas markets at an estimated profit of $80 million dollars a day.4 However, in asserting their constitutional rights under Canadian law, many Indigenous nations have blocked unwanted pipelines that pass through their territory. In the summer of 2018, just one month after the Federal government purchased the Trans Mountain pipeline expansion project at a cost of $4.5 billion in public funds, the Federal Court of Appeal quashed the project after is was challenged by six First Nations for failing to address the adverse effects the expansion would have on their Aboriginal rights. Earlier this year, the arrest of hereditary chiefs and elders at a peaceful checkpoint on unceded Wet’suwet’en territory that lies along the pathway for the Coastal GasLink pipeline made national headlines as people on both sides of the debate voiced their frustration at the ineffective consultation between Canadian and Indigenous governments.
A large crowd of demonstrators march down Wellington Street in Ottawa near Parliament Hill on Jan. 8, 2019. – Photo by Andrew Meade
Under the duty to consult framework, where there is strong evidence for a proposed Aboriginal right claim and a proposed pipeline project
has the potential to adversely affect that right in a serious way, deep consultation is required.5
Meaningful consultation may give rise to a duty to accommodate which includes “taking steps to avoid irreparable harm or minimize effects of infringement.6"
Alternatively, if there is fairly little evidentiary basis to the Aboriginal right claimed and the potential adverse effects are minimal, “notice of contemplated conduct, disclosure of relevant information and discussion of issues raised in response” may be sufficient to discharge the duty.7
Where Aboriginal title has been proven in court, infrastructure development through the land will require the consent of the Aboriginal title holders. Absent consent, the government must satisfy the test for justified infringement on title as laid out in Tsilhqot’in
Projects that at first examination are shown to infringe on an established Aboriginal right will require the government to satisfy the test for justified infringement on rights as laid out in Sparrow
The duty to consult also invokes the honour of the Crown.10 The honour of the Crown is the standard that consultation must satisfy in order for the duty to be discharged. Conformity with the honour of the Crown will depend on the strength of the Aboriginal or treaty right claimed and the potential adverse effects of the contemplated government conduct. Despite the guidance provided by this framework, some critics arthe Canadian government has habitually failed to identify and appropriately respond to Aboriginal rights adversely affected by pipeline development.
The Supreme Court of Canada has confirmed that the Crown may rely on regulatory agencies to execute their consultations so long as these agencies possess the statutory powers necessary to satisfy the duty.11 Canada has frequently relied on the National Energy Board to fulfill the duty to consult. However, structural and procedural flaws in the Board’s regulatory regime have led the Federal Court to overturn the Board’s approval of many key pipeline projects. For instance, in the 2016 decision of Gitxaala Nation v. Canada, the Federal Court of Appeal quashed the National Energy Board’s approval of the Northern Gateway pipeline and provided further guidance on what steps the government must take in order to legally discharged their duty to consult. There the court held that the consultation time should be extended, additional project conditions based on issues raised by Indigenous groups should be added and the consultation team should include a representative with the confidence of Cabinet who could respond meaningfully to issues at the time they are raised during the consultation process.12 Despite this guidance, the court quashed the Trans Mountain expansion in Tsleil-Waututh Nation v. Canada for nearly identical reasons.13
Parliament Hill in Ottawa, Ontario - Photo by Clem Sim on Unsplash
In an effort to revamp the process of consultation, Canada has proposed a new regulatory regime under Bill C-69
, and asserts it will be capable of effectively satisfying the duty to consult by building duty-satisfying mechanisms directly into the enabling statutes. Until Bill C-69 comes into force and a pipeline that has been approved under the new regulatory regime comes under review of the Federal Court, it will be unclear whether the new regime will add any clarity. However, what is clear is that in order to increase political stability and add meaning to our Aboriginal law framework, healing must be at the forefront in the relationship between Canadian and Indigenous governments.
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*Emily Bonnell is Level's Indigenous Youth Outreach Program (IYOP) Coordinator in Ottawa, and is currently completing the final year of her JD at the University of Ottawa. Soon-to-be articling in the area of Aboriginal law in Edmonton, Alberta, she is passionate about advocating for Indigenous people's rights in Canada.
** The term "Aboriginal" is used throughout this article when referring specifically to the Aboriginal rights defined under Section 35 of the Constitution Act, 1982.
1 Haida Nation v. British Columbia (Minister of Forests),  3 SCR 511.
3 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
5 David V. Wright, “Federal Linear Energy Infrastructure Projects and the Rights of Indigenous Peoples: Current Legal Landscape and Emerging Developments” (2018) at 21.
8 Tsilhqot’in Nation v. British Columbia,  2 SCR 257.
9 R v. Sparrow,  1 SCR 1075.
10 Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council,  2 SCR 650 para 63.
11 Chippewas of the Thames First Nation v. Enbridge Pipelines Inc, 2017 SCC 41 at para 32.
12 Gitxaala Nation v. Canada, 2016 FCA 187.
13 Tsleil-Waututh v. Canada (Attorney General), 2018 FCA 153.
‣Cover photo by Muneeb Syed on Unsplash.