The advancement of reconciliation with Indigenous peoples in Canada has had a significant impact on the approval of energy projects since the introduction of Section 35 of the Constitution Act, 1982. The legal concepts of consultation, accommodation and consent have pushed the boundaries of our existing regulatory regimes and challenged the way we think about administrative processes. The move toward the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada, including the concept of ‘free, prior and informed consent’, is certain to further push those boundaries as governments advance reconciliation with Indigenous peoples.

The impact of UNDRIP on regulatory processes will depend on the approach taken to implementation. In canvassing current and proposed legislative and policy developments across Canada, in particular recent legislative changes in British Columbia, there appear to be different models developing for incorporating UNDRIP into Canadian law. These models range from express requirements in relation to Indigenous consent on major project approvals, to more flexible frameworks that will enable governments to address UNDRIP incrementally over time.

Ultimately, many important questions remain with respect to how UNDRIP will impact energy development in Canada:

• How will we reconcile UNDRIP with existing Section 35 case law, and what are the constitutional limits on free, prior and informed consent?

• How will we preserve and promote critical principles such as administrative fairness and efficiency in our regulatory processes?

• Will administrative tribunals be equipped for dealing with new and evolving standards related to UNDRIP and consent?

• How will competing (and in many cases, conflicting) interests of multiple Indigenous groups be addressed, particularly on large-scale linear projects?

• What role will impact benefit agreements and other commercial negotiations have in achieving consent going forward?

Answering these questions will create new challenges for energy projects in Canada, but also opportunities for those that get it right.

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About the Speakers

S Sabrina Spencer
Blake, Cassels & Graydon LLP
Sabrina’s practice focuses on environmental, Aboriginal and regulatory law, and includes project development matters, real property matters, regulatory compliance, Aboriginal consultation and accommodation, and commercial transactions and agreements.

Sabrina has worked with clients in all natural resource sectors and on all phases of project development from preliminary concept development to environmental assessment and permitting to operations. She also assists clients with Aboriginal engagement, consultation and negotiation, and advises clients on the legislative and practical impacts of the United Nations Declaration on the Rights of Indigenous Peoples.

Sabrina has appeared before the British Columbia Provincial Court and Supreme Court. Prior to practicing, she also clerked for six justices of the Supreme Court of British Columbia.

Before studying law, Sabrina worked for an international bank in Vancouver where she held increasingly senior roles in commercial banking and corporate sustainability. She also holds a graduate degree in environmental studies and urban planning.

L Lisa Jamieson
LNG Canada

T Terri-Lee Oleniuk
Blake, Cassels & Graydon LLP
Terri-Lee’s practice focuses on project-related issues concerning natural-resource development with a specialization in regulatory, environmental and Aboriginal law issues.

She acts for a variety of companies in environmental assessments and regulatory proceedings to obtain approvals for major developments in the oil and gas, pipeline, mining (including metal, potash and diamond), natural-gas processing, petrochemical, electricity transmission, hydro, solar and wind sectors.

She also frequently advises clients on various agreements with First Nations and Métis groups and negotiates impact benefit agreements on behalf of developers.

Terri-Lee has appeared before the Canada Energy Regulator, the Alberta Energy Regulator, the Alberta Utilities Commission, the British Columbia Utilities Commission, the Alberta Natural Resources Conservation Board, the Mackenzie Valley Environmental Impact Review Board, the Mackenzie Valley Land and Water Board, and federal-provincial joint review panels in respect of environmental assessment proceedings.

She has also appeared before the Court of Queen’s Bench and Court of Appeal of Alberta.

Before joining Blakes, Terri-Lee was a partner at another major law firm in Calgary. She has also clerked for the Federal Court of Canada.

S Sam Adkins
Blake, Cassels & Graydon LLP
Sam is a corporate commercial lawyer primarily serving clients in the resource sector, with a strong focus on aboriginal and project development matters. His practice is national in scope, acting for clients across Canada on a wide range of aboriginal law issues, including consultation, negotiation and the regulatory process.

Sam has significant industry expertise in the energy and mining sectors, and has represented clients on commercial and transactional matters across all project phases.

Before joining Blakes, Sam held a senior position with an international energy company overseeing all aboriginal-related matters on a proposed liquefied natural gas project in Kitimat, British Columbia. Previously, he was a partner in another leading national law firm.

Sam provides effective, timely and practical advice informed by his experience working both for and within industry.

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