Table turns on Liberal strategy


Western Canadians were rightfully outraged when the federal Liberals passed the Impact Assessment Act which was dubbed the “no more pipelines” bill. This act gave the federal cabinet expanded criteria for which to judge whether a major resource project was in the public interest.
Greenhouse gas emissions, reconciliation and gender inclusivity were added as new grounds for rejection.
But as Heather Exner-Pirot writes, last month the Alberta Court of Appeal ruled the legislation is unconstitutional because it intrudes on provincial jurisdiction by allowing the federal cabinet to veto resource projects based on its view of the public interest in almost unlimited circumstances.
Pirot, a senior fellow at the Macdonald-Laurier Institute, says the court’s commentary is notable for what it says about Indigenous economic rights.
“It has become accepted in Canada that the consent of affected Indigenous communities is not only desireable but necessary for major resource projects to proceed. The legal powers that Indigenous groups wield have been used not only as a tool to defend their constitutionally protected Aboriginal and treaty rights–including hunting, fishing and other traditional uses of the land–but as a strategy by allied groups to delay or cancel resource projects for their own, usually environmental objectives.”
But those who have used Indigenous rights to stymie resource development, the minister of environment and climate change comes to mind–are now finding that there is another side to the matter.
Pirot says the courts have begun to respect Indigenous rights to not only halt development but also to pursue it. She points to Ermineskin Cree Nation vs. Canada 2021 in which the federal court ruled the minister “inexplicably froze out” the Ermineskin when he designated a nearby coal mine for assessment even though the band had already negotiated a benefits agreement with the mining company.
The minister argued that the potential for lost economic benefits did not trigger a duty to consult because it did not adversely affect Aboriginal rights “which he narrowly defined as traditional activities.” The judge disagreed and pointed out that modern interpretations of Aboriginal rights include encompassing economic interests related to resource development.
As Pirot says, the courts are warning the federal government that it can no longer claim to know better than Indigenous nations what is in their best interests when it comes to resource development and treaty rights can no longer be used to stop development that it wants to engage in.
This is very positive for western Canada.
But it is also proof that the federal government will stop at nothing to stymie development in the resource sector.
And also that they obviously don’t really care about what is in the best interests of Canada’s Indigenous peoples.