CHAPTER 12 Environmental Law and Indigenous Rights
Although the Crown must act in good faith to provide meaningful consultation appropriate to the circumstances, there is currently no legal duty on the Crown to ultimately reach an agreement with an Indigenous group. Indigenous groups do not currently have a “veto” over what the Crown can do. However, the Crown has frequently been subject to litigation alleging failure to fulfill its consultation obligations and, in its efforts to achieve reconciliation with Indigenous peoples, has committed to implement the United Nations Declaration on the Rights of Indigenous Peoples (including the goal of securing free, prior and informed consent). Canada has enacted the United Nations Declaration on the Rights of Indigenous Peoples Act , which affirms the Declaration, and provides a framework for the federal implementation of the Declaration. British Columbia has similarly passed a Declaration on the Rights of Indigenous Peoples Act , which establishes the Declaration as the province’s reconciliation framework. As the federal and provincial governments review their laws and policies to ensure alignment with the Declaration, it is expected that consultation and accommodation commitments may extend beyond the legal duty to consult. Indigenous peoples have unique knowledge about the local environment, and this Indigenous traditional knowledge is seen as an important part of project planning, resource management and environmental assessment. For example, the IAA expressly requires the consideration of Indigenous traditional knowledge. When sharing their traditional knowledge, some communities may request that an Indigenous traditional knowledge access agreement (also referred to as a protocol agreement or memorandum of understanding) be negotiated, setting out how that knowledge will be accessed and used.
A private sector proponent does not have an independent common law duty to consult with or accommodate Indigenous people (but may have an express statutory obligation to consult, such as in Ontario’s EIA legislation or renewable energy appeal process for electricity projects, or under Ontario’s Mining Act ). However, while the common law legal duty to consult rests solely on the Crown, private sector proponents generally play an important role in the Indigenous consultation process. For example, the Crown often delegates certain procedural aspects of consultation regarding a proposed project to the project proponent, including day-to-day consultation activities. In these cases, the Crown will generally supervise these activities and their outcomes to ensure that any impacts of the proposed project on established or asserted Indigenous or treaty rights are appropriately addressed, mitigated and/or accommodated. While the final responsibility for consultation and accommodation rests on the Crown, private sector proponents often help fund Indigenous participation in the consultation process and enter into impact and benefit agreements (IBAs) to facilitate Indigenous accommodation. IBAs can mitigate risks of Indigenous litigation, direct action or negative publicity. In exchange for access and some restriction of rights, the Indigenous community may receive employment, education and community benefits, as well as some form of royalty interest, revenue sharing and/or equity participation. Project proponents would be well-advised to ensure that appropriate consultation and accommodation have been conducted because the failure to do so represents a significant risk of project delays and increased project costs for project proponents. Developers with delegated or statutory responsibilities should identify and engage potentially affected Indigenous communities as early as possible. A memorandum of understanding with
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