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.