Status Quo Sorrows: The Failures of Energy Project Consultations and Reconciliatory Paths Forward

Abstract

Canada’s prevailing Aboriginal consultation regime for major energy projects is not working. Indeed, Indigenous peoples, industry proponents, and the Crown have all expressed increasing frustration and dismay at the uncertainty and acrimony that a legal regime intended to facilitate reconciliation between Canada and Indigenous peoples has counterproductively generated. In this paper, I describe the underlying principles of a process-oriented reconciliation that animate the Court’s jurisprudence on section 35 of the Constitution Act, 1982. I then identify the failures in effectively translating these principles to the major energy context, focusing in particular on the harms generated by the lack of accountability and transparency of the National Energy Board/Canada Energy Regulator administrative scheme. I finally consider two alternatives or additions to contemporary resource project consultations – namely, Impact and Benefit Agreements (IBAs) and a proposed Indigenous veto – finding that an Indigenous veto may be an especially effective means of introducing greater equity, fairness, and certainty to major energy project development in Canada, to the benefit of all relevant stakeholders.