Federal Linear Energy Infrastructure Projects and the Rights of Indigenous Peoples: Current Legal Landscape and Emerging Developments

Abstract

In Canada, review and approval of federal linear energy infrastructure projects is a contentious matter. Tension is driven in part by the complex regulatory regime, and this complexity is intensified by obligations on the part of the federal government to fulfill obligations associated with the rights of Indigenous peoples. Today, the legal regime is evolving rapidly and is part of a broader policy debate pertaining to energy and climate policy, and interprovincial pipelines in particular. This article presents the current legal landscape and then discusses emerging changes in federal law and policy. In doing so, it discusses Indigenous rights in the varied legal terrain across the country, describes the legislative scheme for review and approval of federally regulated linear energy projects, and provides in-depth discussion of the duty to consult and accommodate. The final part of the paper turns to the current evolving context, setting out recent changes the federal government has put forward for law reform. While acknowledging that there is an important continuing need for analysis and commentary with a normative approach to the field of Aboriginal law, this article takes the approach of describing the current content of federal law in Canada as it pertains to Indigenous peoples.

Keywords: Aboriginal Law, Indigenous Law, Environmental Law, Energy Law, Pipelines

JEL Classification: K23, K32