Navigating Uncertain Future Indigenous Engagement Requirements: A Road Map for Project Proponents

  • Proponents seeking to develop large energy, infrastructure, and mining projects in Canada face significant uncertainty regarding the future requirements for engaging with Indigenous peoples. Given that these engagements often take several years, future requirements (which are currently not known) may be used to assess ongoing engagement for projects. These requirements may be influenced by a number of factors, including:
  • The implementation of the United Nations Declaration of the Rights of Indigenous Peoples through Bill C-2621 and otherwise, especially with respect to how the concept of "free, prior, and informed consent" will be put into practice.
  • The Government of Canada's ongoing development of a Recognition and Implementation of Rights Framework. While the contents of the framework will be determined through engagement with indigenous peoples, the government has indicated that the framework, as a starting point, should include new legislation and policy that will make the recognition and implementation of rights the basis for all relations between Indigenous peoples and the federal government going forward. Given the government's practice of delegating to proponents' procedural aspects of engaging with indigenous peoples, this framework may affect project proponents.
  • How Canada's proposed Impact Assessment Act will play out on the ground, including the actual roles of indigenous peoples, the federal and provincial governments, and proponents.

In summary, requirements for engaging with indigenous peoples in Canada may profoundly change over the next few years, resulting in proponents having to redo or address gaps in how they engage. The actual or perceived failure to properly engage may result in, among other things, necessary permits not being issued, the issuance of such permits being challenged, or delays with respect to the project schedule.

Moreover, waiting for the requirements to crystallize is often not a feasible option given most projects' schedules. All these changes work to create significant uncertainty for proponents on how to proceed in engaging Indigenous peoples.

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